Lok Sabha Question No. 29 (STARRED), answered on 2023-02-03
Subject: Reform in Collegium System
Ministry: LAW AND JUSTICE
Asked by: Sougata Ray, Deepak Baij

## GOVERNMENT OF INDIA MINISTRY OF LAW AND JUSTICE DEPARTMENT OF JUSTICE

## LOK SABHA STARRED QUESTION NO. 29 ANSWERED ON 03/02/2023

## Reform in Collegium System

## *29.PROF. SOUGATA RAY: SHRI DEEPAK BAIJ:

Will the Minister of LAW AND JUSTICE be pleased to state:

- (a) whether the Government has returned proposals for appointment of Judges of the Supreme Court and High Courts in the recent past and if so, the details thereof and the views expressed by the Supreme Court thereon;
- (b) the steps taken to resolve the issue of appointment of judges in the said courts;
- (c) whether  any  concern/objection  has  been  raised  over  the  functioning  of existing collegium system and if so, the details thereof;
- (d)  whether  the  Government is considering to appoint representatives of Centre and  States  in  the  Committee  for  appointment  of  Judges  in  Supreme  Court and High Courts; and
- (e) if  so,  the  details  thereof,  the  response  of  the  States  and  Supreme  Court thereon  indicating  the  names  of  States  extending  support  to  the  said initiative?

## ANSWER

## MINISTER OF LAW AND JUSTICE

## (SHRI KIREN RIJIJU)

- (a) to (e): A statement is laid on the Table of the House.

## Statement  referred  to  in  reply  to  parts  (a)  to  (e)  of  Lok  Sabha  Starred Question  No.  29  due  for  answer  on  03-02-2023  regarding  'Reform  in Collegium System'

(a)  to  (e):  Reconsideration  of  Supreme  Court  Collegium  was  sought  on  the  18 proposals recently. While examining these proposals SCC decided to reiterate 06 cases, in 07 cases SCC  desired  an  updated  inputs  from  the  High  Court Collegiums, and 05 cases have been decided to be remitted to High Courts.

Appointment  of  Judges  of  the  Supreme  Court  and  High  Courts  is  made under  Articles  124,  217  and  224  of  the  Constitution  of  India  and  as  per  the procedure laid down in the Memorandum of Procedure (MoP) prepared in 1998 pursuant  to  the  Supreme  Court  Judgment  of  October  6,  1993  (Second  Judges case) read with their Advisory Opinion of October 28, 1998 (Third Judges case). As per the existing Memorandum of Procedure for appointment of Judges of High Courts, the Chief Justice of the High Court is required to initiate the proposal for filling  up  of  vacancies  of  a  Judge  in  a  High  Court  six  months  prior  to  the occurrence of vacancies.

In the year 2021, 09 Judges in the Supreme Court and 120 Judges in the High Courts have been appointed and in the year 2022, 03 Judges in the Supreme Court and 165 Judges in the High Courts have been appointed. As on 01.02.2023 against  the  sanctioned  strength  of  34  Judges,  27  Judges  are  working  in  the Supreme  Court  and  recommendations  against  07  vacancies  have  been  received from  the  Supreme  Court  Collegium  recently.  In  the  High  Courts,  against  the sanctioned  strength  of  1108  Judges,  775  Judges  are  working  and  333  posts  of Judges are vacant. Against these vacancies 142 proposals recommended by High Court Collegium are at various stages of processing and recommendations against 191  vacancies  in  the  High  Courts  are  yet  to  be  received  from  the  High  Court Collegiums.

Filling up of vacancies in the High Courts is a continuous, integrated and collaborative process  between  the  Executive  and  the  Judiciary.  It  requires consultation  and  approval  from  various  Constitutional  Authorities  both  at  the

State and Centre level. While every effort is made to fill up the existing vacancies expeditiously, vacancies of Judges in High Courts do keep on arising on account of retirement, resignation or elevation of Judges and also due to increase in the strength of Judges.

In order to replace the Collegium system of appointments of Judges of the Supreme Court and High Courts with a more broad-based, transparent, accountable  appointment  mechanism  and  to  bring  greater  objectivity  in  the system,  the  Government  brought  into  operation  the  Constitution  (Ninety-Ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 w.e.f. 13.04.2015. However, both the Acts were challenged in the Supreme Court. The Supreme Court vide Judgment dated 16.10.2015 declared both  the  Acts  as  unconstitutional  and  void.  The  Collegium  system  as  existing prior  to  the  enforcement  of  the  Constitution  (Ninety-Ninth  Amendment)  Act, 2014 was declared to be operative.

Hon'ble Supreme Court while hearing WP(C) 13 of 2015 in NJAC matter issued  detailed  Order  on  16-12-2015  on  supplementing  the  Memorandum  of Procedure  (MoP)  and  laid  down  that  Government  of  India  may  finalize  the Memorandum of Procedure by  supplementing it  in  consultation  with  the  Chief Justice  of  India.  The  Chief  Justice  of  India  will  take  a  decision  based  on  the unanimous view of the Collegium comprising of four senior most puisne Judges of the Supreme Court.  The order stated that they shall take the following factors into consideration such as eligibility criterion, transparency in the appointment  process,  secretariat,  complaint  mechanism  and  miscellaneous matter considered  appropriate  for  ensuring transparency  and  accountability including  interaction  with  the  recommendees,  the  Collegium  of  the  Supreme Court without sacrificing the confidentiality of appointment.

In  pursuance  of  the  above  orders,  the  Government  of  India,  after  due diligence sent the revised MoP to Hon'ble Chief Justice of India on 22.3.2016 and the  response  of  the  Supreme  Court  Collegium  on  the  revised  draft  MoP  was received  on  25.05.2016  and  01.07.2016.  The  views  of  the  Government  in response  to  the  views  of  the  SCC  was  conveyed  to  the  CJI  on  03.08.2016. Subsequent  comments  of  SCC  on  the  views  of  Government  on  the  draft  MoP were received on 13.03.2017.

Thereafter, the Supreme Court in judgment dated 04.07.2017 in Suo-Motu Contempt  proceedings  against  a  Judge  of  Calcutta  High  Court  brought  out  the system's failure of not providing an appropriate procedure for making assessment of  the  personality  of  the  contemnor  at  the  time  of  recommending  his  name  for elevation  as  High  Court  Judge  inter-alia  highlighting  the  need  to  revisit  the process of selection and appointment of Judges to the Constitutional Courts. The views of the Government on the relevant points was conveyed to Supreme Court of India vide letter dated 11.07.2017.

A two-judge Bench of Supreme Court vide its judgment dated 28.03.2018 in Criminal Appeal No. 470 of 2018, brought out deficiencies in the system and emphasized  the  need  to  improve  the  process  of  appointment  of  Judges  to  the Constitutional Courts.

In  another  case,  while  hearing  a  matter  involving  M/s  PLR  Projects  Pvt Ltd.  vs  Mahanadi  Coalfield  Ltd.  and  Ors  [transfer  petition  (civil)  no:  2419  of 2019]  regarding  issue  of  appointment  of  High  Court  Judges,  the  three-judge Bench of the Supreme Court, vide order dated 20.04.2021, laid down additional timelines  in  respect  of  the  time  taken  by  the  Government  in  processing  the proposal for appointment of Judges of High Courts. However, these timelines are not yet a part of MoP.

The Supreme Court, while hearing another case No. WP(C) 1236 of 2019 on the matter of appointment of retired judges at sittings of High Courts under Article 224A of the Constitution of India, vide its judgment dated 20.04.2021 has laid  down  fresh  criterion  for  their  appointment.  After  detailed  deliberation, Government has submitted its views to the Chief Justice of India on 18.08.2021 to supplement para 24 of existing MoP which provides for the appointment of retired judges at the sitting of High Courts under Article 224A. The issue is still under consideration of the Supreme Court.

While  sending  the  proposal  for  supplementation  of  MoP  on  the  criteria fixed in Supreme Court order dated 16.12.2015 in W.P.(C) 13 of 2015 in NJAC matter,Government  has  made  suggestions  including  the  need  for  a  Screeningcum- Evaluation Committee at the Supreme Court and High Court levels to assist the Collegiums of Supreme Court and High Courts, respectively.  It was proposed that the Committees may screen and evaluate relevant material on the suitability of the prospective candidates and would act as a facilitator. The decision to make recommendations will continue to be exercised by the respective Collegiums of the Supreme Court and High Courts.  However, the Supreme Court did not agree to set up such Committees.

In its recent communication dated 06.01.2023 to the Chief Justice of India, the Government has emphasized the need to finalize the MoP in view of various judicial pronouncements and inter-alia suggested that the Search-cum-Evaluation Committee in respect of appointment of Judges in the Supreme Court and Chief Justices of High  Courts should consist of a representative  nominated  by Government  of  India.    For  appointment  of  Judges  in  the  High  Courts,  the Committee should consist of a representative nominated by Government of India and a representative of State Government(s) under the jurisdiction of High Court as  nominated  by  the  Chief  Minister(s).  The  existing  MoP  stipulates  that  if  the Chief  Minister  desires  to  recommend  the  name  of  any  person,  he/she  should forward the same for consideration. However, since this has not been put in actual practice, the names recommended by the Chief Minister can also be received by the  Search-cum-Evaluation  Committee  along  with the  names  taken  from  senior Judges  outside  the  Collegium  and  eligible  candidates  taken  from  the  database (Judicial Officers and Advocates) as maintained by the proposed Secretariat.  The High Court Collegium may deliberate upon panel of names drawn up by the said Committee and recommend the names of most suitable candidates for appointment  as  Judges  in  the  Supreme  Court,  Chief  Justices  and  Judges  of  the High  Courts. The  Collegium  at  appropriate level may  address  the  above requirements  of  drawing  up  panel  of  eligible  candidates  from  aforementioned sources  and  draw  up  their  proceedings  by  rendering  requisite  reasons  and thereafter send the proposal to the Government with relevant documents.The said Committees will be entrusted to prepare a panel of eligible candidates from which the respective Collegiums will make recommendation.

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