Lok Sabha Question No. 1455 (UNSTARRED), answered on 2023-02-10
Subject: Committee for Appointment of Judges in Higher Judiciary
Ministry: LAW AND JUSTICE
Asked by: Mala Roy, Gaddam Ranjith Reddy, Kavitha Malothu, V. Kalanidhi, Venkatesh Netha Borlakunta, Sougata Ray, Suresh Kodikunnil, Manickam Tagore B

## GOVERNMENT OF INDIA MINISTRY OF LAW AND JUSTICE

## DEPARTMENT OF JUSTICE

## LOK SABHA UNSTARRED QUESTION NO. 1455

## TO BE ANSWERED ON FRIDAY, THE 10.02.2023

## Committee for Appointment of Judges in Higher Judiciary

## 1455. SHRIMATI MALA ROY:

DR. G. RANJITH REDDY:

SHRIMATI KAVITHA MALOTHU:

DR. KALANIDHI VEERASWAMY:

SHRI VENKATESH NETHA BORLAKUNTA:

PROF. SOUGATA RAY:

SHRI KODIKUNNIL SURESH:

SHRI MANICKAM TAGORE B.:

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

- a) whether  the  Government  envisages  to  set  up  a  search  cum  evaluation Committee for the process of appointment of judges in SC and HCs and to include  a  Government  nominee  in  the  decision  making  process  for  short listing of the judges in these courts;
- b) if so, the mechanism proposed for the Committee to be set up and if not, the mechanism being presently followed by the Government to select the judges of SC and HCs;
- c) whether  such  moves  are  likely  to  impinge  upon  the  autonomy  of  the Collegium of the Apex Court and if so, the details thereof;
- d) whether the  said  moves  of  the  Government  have  received  criticism  across the country;
- e) if so, the details thereof and the response of the Government thereto; and
- f) the present status of the Memorandum of Procedure for the appointment of Judges in SC and HCs?

## MINISTER OF LAW AND JUSTICE

## ANSWER (SHRI KIREN RIJIJU)

(a) to (f): 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 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  by  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  were  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 Screening-cumEvaluation 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 Searchcum-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.

Government is totally committed to uphold the Constitution, its values and importantly  the  independence  of  Judiciary  which  is  an  integral  feature  of  the Constitution of India. The finalization of MoP is aimed at making the system of appointment  of Judges to the Constitutional Courts more  transparent, fair, representative and accountable.

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