Lok Sabha Question No. 1239 (UNSTARRED), answered on 2024-02-09
Subject: Collegium System
Ministry: LAW AND JUSTICE
Asked by: D.K. Suresh

## GOVERNMENT OF INDIA

## MINISTRY OF LAW AND JUSTICE DEPARTMENT OF JUSTICE

## LOK SABHA UNSTARRED QUESTION NO. 1239

## TO BE ANSWERED ON FRIDAY, THE 09.02.2024

## Collegium System

## 1239. SHRI D.K. SURESH:

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

- (a) whether the collegium system has received strong opposition due to lack of transparency;
- (b) if so, the details thereof;
- (c) whether the Union Government is taking any measures to ensure transparency  in  the  appointment  and  elevation  of  judges  in  the  collegium system; and
- (d) if so, the details thereof?

## ANSWER

## MINISTER OF STATE (INDEPENDENT CHARGE) OF THE MINISTRY OF LAW AND JUSTICE; MINISTER OF STATE IN THE MINISTRY OF PARLIAMENTARY AFFAIRS; AND MINISTER OF STATE IN THE MINISTRY OF CULTURE

## (SHRI ARJUN RAM MEGHWAL)

(a) to (d): 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 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 wasreceived  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  SuoMotu 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 underArticle 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 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 said Committees will be entrusted to prepare a panel of eligible candidates from which the respective Collegiums will make recommendation.The High Court Collegium may deliberate upon panel of names drawn up by the said Committee and recommend the names of most suitable candidates forappointment 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.