Lok Sabha Question No. 40 (STARRED), answered on 2023-02-03
Subject: Procedure for Appointment of Judges
Ministry: LAW AND JUSTICE
Asked by: K. Muraleedharan

## GOVERNMENT OF INDIA MINISTRY OF LAW AND JUSTICE

## DEPARTMENT OF JUSTICE

## LOK SABHA

## STARRED QUESTION NO. 40

## TO BE ANSWERED ON FRIDAY, THE 03.02.2023

## Procedure for Appointment of Judges

## *40. SHRI K. MURALEEDHARAN:

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

- (a) whether the Government has taken any steps to finalise the Memorandum of Procedure for appointment of the judges of the Supreme Court of India and the High Courts;
- (b) if so, the details thereof; and
- (c) if not, the reasons therefor?

## ANSWER MINISTER OF LAW AND JUSTICE (SHRI KIREN RIJIJU)

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

Statement  referred  to  in  reply  to  parts  (a)  to  (c)  of  Lok  Sabha  Starred Question  No.  40  due  for  answer  on  3-2-2023  regarding  'Procedure  for Appointment of Judges'

(a) to (c) : 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  MoP  to  Hon'ble  Chief  Justice  of  India  on  22.3.2016,  the response of the Supreme Court Collegium on the revised draft MoP was received on  25.05.2016  and  01.07.2016.  The  view  of  the  Government  in  response  to  the views  of  the  SCC  was  conveyed  to  the  CJI  on  03.08.2016.  The  view  of  the Government  in  response  to  the  views  of  the  SCC  was  conveyed  to  the  CJI  on 03.08.2016.  Comments  of  SCC  on  the  views  of  Government  on  the  draft  MoP received on 13.03.2017.

Subsequently, the Supreme Court in judgment dated 4.7.2017 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  inter-alia  highlighted  the  need  to  revisit  the  process  of  selection  and appointment of Judges to the Constitutional Courts. The view of the Government on the relevant points was conveyed to Supreme Court of India vide letter dated 11.07.2017. However, the response of Supreme Court is still awaited.

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.

In view of various judicial pronouncements and suggestions by the Supreme Court, the Government in its recent communication dated 06.01.2023 to the Chief Justice of India, has emphasized on the need to finalize the MoP. The response is yet to be received from the Supreme Court.

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