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Synopsis

In response to the tweet of Delhi Chief Minister Arvind Kejriwal calling the Central Government's push for inclusion of its representatives in the Supreme Court collegium "extremely dangerous", Union Law Minister Kiren Rijiju has clarified that his letter to the Chief Justice of India in this regard was a 'precise follow-up action' of the direction of the Supreme Court.

Refuting the allegations that the current dispensation is trying to sabotage the independence of the judiciary, Rijiju stated that the content of the letter that he sent to CJI is exactly in conformity with the observations and directions of the Supreme Court Constitution Bench.

Rijiju was referring to the case wherein the Supreme Court had struck down the National Judicial Appointment Commission Act. In the matter, a five-judge Constitution Bench of the Top Court had passed an order on December 16, 2015, wherein it saw eye to eye with the Centre regarding the restructuring of the existing Memorandum of Procedure (MoP) of the collegium.

While agreeing with the submissions of the then Attorney General that the MoP of the collegium system had always been prepared by the GOI in consultation with the President of India and the CJI, the Constitution bench had held that for such amendment in the existing MoP, while deciding on the eligibility criteria of the judges, views of the governments of the states, as well as of the Centre, will be called in. 

"The Memorandum of Procedure may indicate the eligibility criteria, such as the minimum age, for the guidance of the collegium (both at the level of the High Court and the Supreme Court) for appointment of Judges, after inviting and taking into consideration the views of the State Government and the Government of India (as the case may be) from time to time", the order read. 

Apart from that, the order provided for the establishment of a Secretariat for each High Court and the Supreme Court. It stated that in the interest of better management of the system of appointment of Judges, the MoP may provide for such Secretariat and prescribe its functions, duties and responsibilities.

The Memorandum of Procedure (MoP) evolved as a standard playbook agreed upon by the government and the judiciary on the appointment of judges after the decisions of the Supreme Court in the Second Judges Case (1993) and the Third Judges Case (1998).

The MoP was first drawn up in 1999. It was re-negotiated in 2016 following the Supreme Court’s abovementioned decision. In 2016, the government sent a revised MoP and in response to the same the Supreme Court collegium sent back a revised draft the same year.

However, despite multiple exchanges between the government and the SC Collegium on the proposed revised MoP, even after 7 years, the MoP has not been finalised by the Supreme Court. In fact, an order of the division bench of the Supreme Court to speed up the process of amending the MoP for appointments was recalled by top court in 2015.

In this regard, on December 8 last year, while passing orders in a plea against Centre sitting over names reiterated by Collegium for judges' appointment, a full bench of the Top Court stated that "the final view of the collegium was expressed in the MoP which was received by the Govt. on 13.03.2017- The undisputed legal position that the MoP is final".

During an earlier hearing in the matter in November, the bench, which was presided by Justice S K Kaul who himself is a member of the SC Collegium, had issued notice to the Law Ministry and observed that keeping names of judges on hold is not acceptable.