In what could reignite the clash between the Centre and judiciary after a lull, the Supreme Court on Friday issued notice to Attorney General KK Venugopal wanting to know why the Memorandum of Procedure (MoP) that governs appointment of judges in the High Courts and the Supreme Court has not been finalised by the Centre despite the apex court having given its nod almost two years ago.
The issue of MoP has remained a bone of contention between the judiciary and the Government ever since the apex court quashed the National Judicial Appointment Commission (NJAC) Act, devised as an alternative to replace the SC collegium system, in October 2015.
“Even though no time limit was fixed by this court for finalisation of the MoP, the issue cannot linger on for indefinite period. The order of this court is dated December 16, 2015 and more than one year and ten months have already gone by,” said a Bench of Justices Adarsh K Goel and UU lalit. The court was hearing an appeal filed by lawyer RP luthra, who challenged all judicial appointments made by the SC collegium without the MoP being finalised. The appeal was filed against a Delhi HC decision of May 1, 2017 that dismissed the petition.
The claim of the petitioner was rejected by the apex court but it kept open the issue of MoP. Issuing notice to the A-G, the Bench also went ahead with appointing senior advocate KV Vishwanathan to assist them in the matter on November 14, the next date of hearing.
The court’s decision was not solely guided by the December 2015 order as the Bench even referred to another order passed by the apex court on July 4, 2017 which dealt with a former HC judge CS Karnan, who was sentenced to prison for contempt. In that order, the court emphasised the need to set up a mechanism in the judicial appointment process where corrective measures can be taken against an erring judge other than impeachment. By this, the court indicated that it wished to know from the Centre whether this judgment too had been examined in the yet-to-be-finalised MoP or not.
The court accepted the suggestion by the petitioner lawyer that Chief Justices of High Courts should be appointed prior to the vacancy arising in the post and under no circumstance should an Acting Chief Justice of a High Court continue exceed a term of one month.
Aware of the deficiencies within the collegium system and to reform this process, a five-judge Bench had passed an order in December 2015 allowing the Centre to include the criteria of transparency, complaint redressal mechanism and a Secretariat as a back office to enhance timely and effective appointment of judges.
The matter of MoP finalisation was taken up by former CJI TS Thakur in a PIl where the judiciary had an eyeball-to-eyeball confrontation with Centre, threatening the latter for sitting over collegium recommendations. The Centre had shot back saying the apex court refused to respond to its letters for lack of consensus among the judges who constitute the collegium. After Justice Thakur’s exit, certain rough edges had been smoothened till Friday, when the court again put the ball back to Centre’s court.