Dilemma over MoP on Judges’ Appointment

The judiciary and executive are trying to find out an acceptable procedure for appointment of judges. The conflict between these two Constitutional Estates is interestingly about how to bring in the accountability. Though both agreed that there are serious deficiencies in Collegium centred appointment of constitutional judges, the consensus appears to be elusive.

The Judicial Standards and Accountability Bill, proposed a committee headed by a former Chief Justice of India, comprising of the Chief Justice of India and the Chief Justices of the High Courts, where the public can lodge complaints against judges. The five-member committee will be appointed by the President, who is bound to accept PM’s recommendation.

A recommendation is to be made by a three member committee- two from government and one recommended by the leader of the opposition, which accommodates other view. On receiving a complaint, the committee will forward it to scrutiny panels having the powers of a civil court. If the charges are serious, the committee can request the judge concerned to resign, if the judge does not do so, the ‘oversight committee’ will forward the case to the President with an advisory for his removal.

The bill also mandates that the judges should not have any close association with the individual members of the bar. This bill contains a proposal for transparency that mandates all the details concerning the investigations to be put up in the SC and HC websites. The accountability bill was passed by Lok Sabha in 2012 but it lapsed with the dissolution of the 15th House. Lapse of this bill shows there is no complaints receiving system in judiciary. It appears two Estates does not have will to pass this bill.

Then they devised an in-House Procedure MoP-1999 for appropriate remedial action against Judges who, by their acts or commission, do not follow universally accepted values of judicial life mentioned in Reinstatement of Values of Judicial Life. The Report of the Committee on in-House Procedure signed by SC Agrawal, AS Anand, SP Bharucha, PS Mishra and DP Mohapatra JJ, says:

Complaints are often received containing allegations against a Judge pertaining to the discharge of his judicial functions. Sometimes complaints are received with regard to the conduct and behaviour of the Judge outside the court. The complaints are generally made by a party to the proceedings who feel dissatisfied with the adverse order passed by the Judge or by persons having a personal grudge against the Judge.

Most of these complaints are found to be false and frivolous. But there may be complaints which cannot be regarded as baseless and may require deeper probe. A complaint casting reflection on the independence and integrity of a Judge is bound to have a prejudicial effect on the image of the higher judiciary of which the Judge is an honoured member.

The adoption of In-House Procedure would enable a complaint against a Judge being dealt with at the appropriate level within the institution. Such a procedure will serve a dual purpose. In the first place, the allegations against a Judge would be examined by his peers and not by an outside agency and thereby the independence of the judiciary would be maintained.

Secondly, the awareness that there exists a machinery for examination of complaints against a Judge would preserve the faith of the people in the independence and impartiality of the judicial process. The Committee has approached the task assigned to it in perspective. This is also section 4(1)(b) aspect of the RTI Act, that there should be a machinery, which needs to be voluntarily disclosed.

The Memorandum of Procedure 1999 recognized the fact that announcing machinery to examine complaints against judges would preserve the faith of the people in the judiciary. This report has prescribed a procedure for complaining against High Court judges, and the judges of Supreme Court including the Chiefs. There was no mention about complaints against former judges, former Chief Justices.

Draft Memorandum of Procedure (2016-17):

In December 2015, Supreme Court in NJAC case said that “the Memorandum of Procedure (1999) needs fine tuning.” The Court directed the government to draft a Memorandum of Procedure and obtain approval from the collegium. On May 28, 2016, the Supreme Court has turned down a new MoP and returned it to the government in two months.

The collegiums did not want some clauses which were not in harmony with the tenets of independent functioning of judiciary. The government contended that the current system of selection was opaque and that transparency was imperative, and that the government felt that the draft could not instill transparency in the process of selections.

The government reportedly decided to keep appointment of top judges out of purview of Right to Information Act. Earlier it was contending constantly before the Supreme Court that the collegium system was opaque, also asserting that any appointment should be open to scrutiny under the RTI Act. However the government had later took the stand that transparency could be achieved ‘even without’ RTI.

The Government proposed: a) Seniority & Merit - While promoting a High Court Chief Justice or a judge to the Supreme Court, the criteria of seniority, merit and integrity would be followed. Preference should be given to Chief Justices of the High Courts keeping in view their “inter-se seniority”, b) Reasons in writing - In case a senior Chief Justice being overlooked for elevation to the Supreme Court, the reasons for the same be recorded in writing”, c) Three-judge quota - Up to three judges may be appointed from the Bar or from distinguished jurists with proven track records, d) Committee & Secretariat - To set up an institutional mechanism in the form of a committee to assist the collegium in evaluation of the suitability of prospective candidates.

There should be a secretariat that maintains a database of judges, schedules collegium meetings, maintains records and receives recommendations and complaints related to judges’ postings, and e) National Security - A criteria of “national security” and “larger public interests” for rejection of recommendation by the collegium.

The collegium’s counter-argument is that recordings of reasons for overlooking a Chief Justice or a senior judge will be counter-productive as the reasons specified may mar his/her prospects of being elevated to the Supreme Court at a “future point of time”. Judiciary also said that the “upto three” judges from bar is equivalent to either restricting the intake from the bar or fixing a quota of the bar. And in neither case does it fall within the framework of the Constitutional provisions.

The Parliamentary Standing Committee on Law and Justice noted on 8.12.2016 that the government may assume a “veto power” and reject any name recommended by the Collegium for appointment of judges if it succeeds in inserting clauses of “national security” and “larger public interests” in the proposed Memorandum of Procedure (MoP). This power is not available for the executive in the Constitution.

On March 16, 2017, a media-portal reported: “The Supreme Court collegium has finalised the Memorandum of Procedure (MoP) for appointment of judges in the higher judiciary resolving a year-long impasse with the executive by agreeing to include the contentious clause of national security in selection of judges. ..The national security clause, which gave veto power to the government to reject a name recommended by the collegium, and the issue of setting up of secretariats in the apex court and all the high courts, were among the two key clauses in the MoP on which the Centre and the judiciary had differences. … after deliberations, the collegium agreed on setting up secretariats in the apex court and the High Courts to collate data about judges and assist in the selection procedure for their appointment to the higher judiciary”. Will they bring transparency? (Based on decision in Subhash Chandra Agrawal v CPIO, Dept of Justice, CIC/VS/A/2014/000989-SA, on 3.5.2017)

By Madabhushi Sridhar