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Read Order of Constitution Bench of the Supreme Court to improve working of ‘collegium system’
IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 13 OF 2015Supreme Court Advocates-on-RecordAssociation and Another….Petitioners versusUnion of India…Respondent WITH|WRIT PETITION (C) NO. 14 OF 2015 |WRIT PETITION (C) NO. 18 OF 2015 ||WRIT PETITION (C) NO. 23 OF 2015 |TRANSFER PETITION (C) NO.24 OF 2015 ||WRIT PETITION (C) NO. 70 OF 2015 |WRIT PETITION (C) NO. 83 OF 2015 ||WRIT PETITION (C) NO. 108 OF 2015 |WRIT PETITION (C) NO. 124 OF 2015 ||WRIT PETITION (C) NO. 209 OF 2015 |WRIT PETITION (C) NO. 309 OF 2015 ||WRIT PETITION (C) NO. 310 OF 2015 |WRIT PETITION (C) NO. 323 OF 2015 ||WRIT PETITION (C) NO. 341 OF 2015 |TRANSFER PETITION (C) NO. 391 OF 2015||TRANSFER PETITION (C) NO. 971 OF | ||2015 | | O R D E R1. The adjudication on the merits of the controversy, raised in thisbatch of cases, was rendered on 16th October, 2015, wherein a separate“Order of the Court” was also recorded. In paragraph 5 of the Order of theCourt, it was decided to consider the incorporation of additionalappropriate measures, if any, for an improved working of the “collegiumsystem”. For the above purpose, hearing was fixed for (and commenced on)3rd November, 2015. Mr. Mukul Rohatgi, learned Attorney General for India,preferred written suggestions and supplemented them with oral submissions.Likewise, other learned senior counsel were also heard and they toopresented their views. Submissions were advanced freely, solely with theobjective of introducing measures in the prevailing “collegium system” ofappointment of Judges to the higher judiciary, which in the perception ofthe concerned learned counsel, would improve the working of the system.2. From the first hearing itself, it emerged that the suggestions wereon diverse issues. A few suggestions, though honestly and meaningfullyexpressed, contained diametrically opposite recommendations. It wastherefore felt that the suggestions received should be compiled in anorderly manner so as to enable all concerned stakeholders to have a bird’seye view of the same, thereby possibly making the debate thereon morejudicious. Accordingly, on the nomination by the learned Attorney General,of Mrs. Pinki Anand, Additional Solicitor General, and on the unanimousendorsement of all the learned counsel representing the petitioners, of Mr.Arvind P. Datar, Senior Advocate, a two-member committee was constituted. The committee was requested to make a compilation of the suggestionsreceived upto 4th November, 2015. The above committee presented thecompilation on 5th November, 2015.3. After hearing the Chairman of the Bar Council of India and learnedcounsel some of whom had travelled from distant States, it was felt that afurther opportunity should be afforded to the stakeholders to furnish theirvaluable contributions on the matter. It is therefore, that the followingorder came to be passed on 5th November, 2015:“Mrs. Pinky Anand, learned Additional Solicitor General, and Mr. ArvindDatar, learned Senior Advocate have made a compilation of suggestionsreceived up to 23.45 hours on 4.11.2015, in furtherance of our motion Benchorder dated 3.11.2015. A large number of learned counsel have even todayprayed for further time to make suggestions. They have also requested fortime on behalf of private individuals for the same purpose.The Chairman of the Bar Council of India has also made a prayer, that theBar Council of India which is the apex body of all the State Bar Councils,be permitted to gather suggestions from all stake holders, and submit suchof the suggestions as it approves, for consideration by this Court.The learned Attorney General for India has volunteered to facilitate theprayer made by the learned counsel, by web-hosting the compilation made bythe Additional Solicitor General and the learned Senior Counsel referred toabove, on the web site of the Department of Justice, Ministry of Law andJustice, New Delhi, and also, to issue a public notice in the media seekingsuggestions from all those who may desire to make contribution by 17.00hours on 13.11.2015 (up to 14.11.2015 by the Bar Council of India).Suggestions may be made in the four categories, i.e., Transparency,Collegium Secretariat, Eligibility Criteria and Complaints.We appreciate the efforts made by the learned Attorney General for India.He may web-host the compilation and issue a WP(C)No.13/15 etc.etc. 8 publicnotice. Likewise, all those who desire to make suggestions may do sodirectly, on the website of the Department of Justice, Ministry of Law &Justice, New Delhi. Suggestions received by 17.00 hours on 13.11.2015 shallbe entertained. No further suggestions will be entertained. All suchsuggestions will be forwarded by the Department of Justice to the learnedcounsel who had assisted this Court in the previous compilation, forincorporating additional suggestions in the earlier compilation, forconsideration.List on 18.11.2015 for hearing. Hearing shall be limited to two days andwill conclude on 19.11.2015. Hearing shall be limited to such of thecounsel who are short-listed and allowed time by a Committee comprising oflearned Attorney General for India, the Chairman, Bar Council of India, andMr. Fali S. Nariman, learned Senior Advocate. No other counsel shall beheard.”4. During the resumed hearing, all those who desired to address theCourt were afforded an opportunity of being heard. After all, thisassistance to the Bench was being rendered pro bono publico, in theinterest of the judiciary as an institution, as well as for and on behalfof all stakeholders.5. It is important to note that the compilation of the writtensuggestions placed before us was in the nature of a summary prepared out ofapproximately 11,500 pages of views expressed. We had a very challengingresponsibility to embark upon and reflect, and thereafter, to sieve such ofthe suggestions as were likely to improve the “collegium system”. Onlythen would we be in a position to sponsor their introduction into theMemorandum of Procedure for the appointment of Judges of the higherjudiciary.6. Even though the task seemed to be daunting, we felt obliged to takeup the responsibility, as it was after all, for an improvement of thejudicial system and such an opportunity must not be lost. It was at thisstage of our reflection, that the learned Attorney General made animpassioned submission, not in any obstructive manner, but as a matter offaithful assistance, suggesting that we should desist from pursuing thecontemplated course of action. In this behalf it was pointed out, that theformulation of the Memorandum of Procedure was an administrativeresponsibility which fell in the executive domain. It was submitted thatthis Court neither had the expertise nor the wherewithal for proposingamendments in the existing Memorandum of Procedure (drawn on 30th June,1999 by the Government of India), for improving the collegium system. Thelearned Attorney General in his submission candidly invited our attentionto the following observations recorded in paragraph 478 of the SecondJudges case[1]:“478. ….(13) On initiation of the proposal by the Chief Justice of India orthe Chief Justice of the High Court, as the case may be, copies thereofshould be sent simultaneously to all the other constitutional functionariesinvolved. Within the period of six weeks from receipt of the same, theother functionaries must convey their opinion to the Chief Justice ofIndia. In case any such functionary disagrees, it should convey itsdisagreement within that period to the others. The others, if they changetheir earlier opinion, must, within a further period of six weeks, soconvey it to the Chief Justice of India. The Chief Justice of India wouldthen form his final opinion and convey it to the President within fourweeks, for final action to be taken. It is appropriate that a memorandum ofprocedure be issued by the Government of India to this effect, afterconsulting the Chief Justice of India, and with the modifications, if any,suggested by the Chief Justice of India to effectuate the purpose. ….” (emphasis supplied)It was submitted that even the nine-Judge Bench had left the task ofdrawing up the Memorandum of Procedure to the Government of India.7. It was the further submission of the learned Attorney General thatthe views expressed by this Court, while disposing of the main controversywould enable the Government of India, to introduce amendments and to redrawthe existing Memorandum of Procedure with the object of considering thecriteria/benchmark for the appointment of Judges of the higher Judiciary,including widening the zone of consideration; to introduce transparency inthe matter of appointment of Judges to the higher judiciary, as would beappropriate, keeping in mind the sensitivity of the issue; to make thepresent procedure broad based, by introducing supporting measures, wherebycandidates can be screened and evaluated, and complaints against them areevaluated through a Secretariat constituted for the said purpose, under thecontrol of the Chief Justice of India, as supplemental (and not as asubstitute) to the process contemplated through the Second Judges case andthe Third Judges case[2] as well as our judgment on merits in the presentbatch of cases.8. We may also record, that the introduction of the above changesreferred to in the preceding paragraph, are broadly in tune with themajority of the suggestions. These were also referred to by us by thecommittee under the category of “transparency”, “secretariat”, “eligibilitycriteria” and “complaints”, in our order dated 5th November, 2015.9. During the course of hearing, we were also informed by the learnedAttorney General, that the Memorandum of Procedure and introducingamendments therein, had always been prepared by the Government of India inconsultation with the President of India and the Chief Justice of India.This practice, we were informed, had been consistently adopted, inconsonance withthe directions contained in paragraph 478 of the Second Judges case. Inorder to allay any fear that may be entertained by any of the stakeholders,it was submitted that the same procedure would be adopted now, if the taskwas entrusted to the executive. We are in complete agreement with thesuggestion of the learned Attorney General.10. In view of the above, the Government of India may finalize theexisting Memorandum of Procedure by supplementing it in consultation withthe Chief Justice of India. The Chief Justice of India will take a decisionbased on the unanimous view of the collegium comprising the four seniormostpuisne Judges of the Supreme Court. They shall take the following factorsinto consideration:Eligibility criteriaThe Memorandum of Procedure may indicate the eligibility criteria, such asthe minimum age, for the guidance of the collegium (both at the level ofthe High Court and the Supreme Court) for appointment of Judges, afterinviting and taking into consideration the views of the State Governmentand the Government of India (as the case may be) from time to time.Transparency in the appointment processThe eligibility criteria and the procedure as detailed in the Memorandum ofProcedure for the appointment of Judges ought to be made available on thewebsite of the Court concerned and on the website of the Department ofJustice of the Government of India. The Memorandum of Procedure may providefor an appropriate procedure for minuting the discussions includingrecording the dissenting opinion of the Judges in the collegium whilemaking provision for theconfidentiality of the minutes consistent with the requirement oftransparency in the system of appointment of Judges.SecretariatIn the interest of better management of the system of appointment ofJudges, the Memorandum of Procedure may provide for the establishment of aSecretariat for each High Court and the Supreme Court and prescribe itsfunctions, duties and responsibilities.ComplaintsThe Memorandum of Procedure may provide for an appropriate mechanism andprocedure for dealing with complaints against anyone who is beingconsidered for appointment as a Judge.MiscellaneousThe Memorandum of Procedure may provide for any other matter consideredappropriate for ensuring transparency and accountability includinginteraction with the recommendee(s) by the collegium of the Supreme Court,without sacrificing the confidentiality of the appointment process.11. It is made clear that the guidelines mentioned above are only broadsuggestions for consideration and supplementing the Memorandum of Procedurefor the faithful implementation of the principles laid down in the SecondJudges case and the Third Judges case.12. In view of the above, all matters having been collectively heard,are disposed of. . .....…………………………J (Jagdish SinghKhehar) .....…………………………J (J. Chelameswar) .......…………………………J (Madan B. Lokur) .......…………………………J (Kurian Joseph) .......…………………………JNew Delhi; (Adarsh Kumar Goel)December 16, 2015ITEM NO.1A COURT NO.3 SECTION X, XVIA, PIL IN THE SUPREME COURT OF INDIA RECORD OF PROCEEDINGSWrit Petition(s)(Civil) No(s).13/2015SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION AND ANR. Petitioner(s) VERSUSUNION OF INDIA Respondent(s)WITHW.P.(C) No.23/2015W.P.(C) No.70/2015W.P.(C) No.83/2015T.P.(C) No.391/2015W.P.(C) No.108/2015W.P.(C) No.124/2015W.P.(C) No.309/2015W.P.(C) No.310/2015W.P.(C) No.323/2015T.P.(C)No.971/2015W.P.(C)No.341/2015W.P.(C) No.14/2015W.P.(C) No.18/2015W.P.(C) No.24/2015W.P.(C) No.209/2015[HEARD BY: HON'BLE JAGDISH SINGH KHEHAR,HON'BLE J. CHELAMESWAR, HON'BLEMADAN B. LOKUR, HON'BLE KURIAN JOSEPH AND HON'BLE ADARSH KUMAR GOEL, JJ.]Date : 16/12/2015 These petitions were called on for pronouncement of Orders today.For Petitioner(s) Mr. Surya Kant, Adv.In WP 13/2015 Mr. Dushyant Parashazr, Adv. Mr. Pranav Vyas, Adv.For Petitioner(s) Mr. Dinesh Kumar Garg, AORIn WP 23/2015For Petitioner(s) Mr. Santosh Paul, Adv.In WP 70/2015 Mr. Joseph Aristotle S., Adv.For Petitioner(s) Mr. Prashant Bhushan, AORIn WP 83/2015For Petitioner(s) Mr. Anil B.Divan, Sr. Adv.In WP 108/2015 Mr.Prashant Kumar, Adv. Ms.Anindita Pujari, Adv. Mr. Syed Rehan, Adv. Mr.Ranvir Singh, Adv. Mr.Jitendra Kr.Mohapatra, Adv.For Petitioner(s) Mr. Rabin Majumder, AORin WP 124/2015 Mr. Ramesh Babu M.R., AORFor Petitioner(s) Mr. P.M.Duraiswamy, in person(NP)in WP 309/2015For Petitioner(s) Mr. Subhasish Bhowmick, AORin WP 310/2015For Petitioner(s) Mr.Rabin Majumder, AORin WP 323/2015In TP(C) 971/15 Ms.Prachi Bajpai, Adv.In WP(C) 341/15 Mr.Ankur S.Kulkarni, AORFor Petitioner(s) Mr. Manohar Lal Sharma, in person (NP)in WP 14/2015For Petitioner(s) Mr. R.K. Kapoor, in person(NP)in WP 18/2015For Petitioner(s) Mr. Bishwajit Bhattacharyya,in person(NP)in WP 24/2015For Petitioner(s) Mr. Rajiv Daiya, in person(NP)in WP 209/2015For Respondent(s) Mr. P.S. Narasimha, ASG(UOI) Ms. V. Mohana, Sr. Adv.and for Mrs. Devanashi P, Adv.petitioners Mr.Nikhil Rohatgi, Adv.In TP 391/2015 Mr.Sameer Rohatgi, Adv. Mr.D.L.Chidananda, Adv. Mr.Samit Khosla, Adv. Mr. B.V. Balaram Das, AORFor SCBA Mr. Devashish Bharuka, AORFor State of Raj. Mr.Shiv Mangal Sharma, AAG for Ms.Ruchi Kohli, AORFor State of Mr.Tapesh Kr.Singh, Adv.Jharkhand Mr.Mohd.Waquas, Adv. Mr.Shashank Singh, Adv.For State of Mr.C.D.Singh, AAGChhattisgarh Mr.A.P.Mayee, Adv. Mr. Apoorv Kurup, Adv. Mr. Rohit Rathi, Adv. Mr. A. Selvin Raja, Adv.In I.A.No.7/15 Mr.Arvind P.Datar, Sr.Adv.In WP(C)13/15 Mr. Gautam Narayan, Adv.For State of Mr.Sapam Biswajit Meitei, Adv.Manipur Mr.Ashok Kumar Singh, Adv.For State of Mr.Sanjay Kr.Visen, AORHaryanaFor State of MP Mr. Mishra Saurabh, AORFor State of H.P. Mr.Suryanarayana Singh, AAG Ms.Pragati Neekhra, Adv.For Govt. of Mr.V.G.Pragasam, AORPuducherryFor State of U.P. Mr. Gaurav Bhatia, AAG Mr.Utkarsh Jaiswal, Adv. Mr. Som Raj Choudhary, Adv. for Mr.Abhisht Kumar, AORfor BCI Mr. Manan Kumar Mishra, Sr. Adv. Ms. Anjul Dwivedi, Adv.For Andaman & Mr.K.V.Jagdishvaran, Adv.Nicobar Admn. Mrs.G.Indira, AORFor State of Ms.Hemantika Wahi, AORGujaratFor State of Mr.Jagjit Singh Chhabra, Adv.Punjab Mr.Gaurav Yadava, Adv. for Mr. Kuldip Singh, AORFor State of Mr.M.Yogesh Kanna, AORTamil Nadu Mr. Jayant Patel, Adv.For State of Mr.Ritu Raj Biswas, Adv.Tripura Mr. Shreyas Jain, Adv. for Mr.Gopal Singh, AORFor State of Mr.Nishant R Kanteshwarkar, AORMaharashtraFor State of Ms.Rachna Srivastava, AORUttarakhandFor State of Ms.Aruna Mathur, Adv.Sikkim Mr.Avneesh Arputham, Adv. Ms.Anuradha Arputham, Adv. Mr.Yusuf, Adv. Mr. Shobhit Nanda, Adv.For State of Mrs.K.Enatoli Sema, Adv.Nagaland Mr.Edward Belho, Adv. Mr.Amit Kumar Singh, Adv.For State of Mr. Shreyas Jain, Adv.Bihar for Mr. Gopal Singh, AOR Mr. Gautam Talukdar, AOR Mr. Varun Thakur, Adv. for Mr. Varinder Kr. Sharma, AOR Mr. Subo Sankar Mishra, AOR Mr. Niranjan Sahu, Adv. Hon'ble Mr. Justice Jagdish Singh Khehar pronounced the Order of theBench comprising His Lordship, Hon'ble Mr. Justice J. Chelameswar, Hon'bleMr. Justice Madan B. Lokur, Hon'ble Mr. Justice Kurian Joseph and Hon'bleMr. Justice Adarsh Kumar Goel. For the reasons mentioned in the Reportable Order, which is placedon the file, the Court while disposing of all the matters collectivelyheard, directed as under:9. During the course of hearing, we were also informed by the learnedAttorney General, that the Memorandum of Procedure and introducingamendments therein, had always been prepared by the Government of India inconsultation with the President of India and the Chief Justice of India.This practice, we were informed, had been consistently adopted, inconsonance with the directions contained in paragraph 478 of the SecondJudges case. In order to allay any fear that may be entertained by any ofthe stakeholders, it was submitted that the same procedure would be adoptednow, if the task was entrusted to the executive. We are in completeagreement with the suggestion of the learned Attorney General.10. In view of the above, the Government of India may finalize theexisting Memorandum of Procedure by supplementing it in consultation withthe Chief Justice of India. The Chief Justice of India will take a decisionbased on the unanimous view of the collegium comprising the four seniormostpuisne Judges of the Supreme Court. They shall take the following factorsinto consideration:Eligibility criteriaThe Memorandum of Procedure may indicate the eligibility criteria, such asthe minimum age, for the guidance of the collegium (both at the level ofthe High Court and the Supreme Court) for appointment of Judges, afterinviting and taking into consideration the views of the State Governmentand the Government of India (as the case may be) from time to time.Transparency in the appointment processThe eligibility criteria and the procedure as detailed in the Memorandum ofProcedure for the appointment of Judges ought to be made available on thewebsite of the Court concerned and on the website of the Department ofJustice of the Government of India. The Memorandum of Procedure may providefor an appropriate procedure for minuting the discussions includingrecording the dissenting opinion of the Judges in the collegium whilemaking provision for the confidentiality of the minutes consistent with therequirement of transparency in the system of appointment of Judges.SecretariatIn the interest of better management of the system of appointment ofJudges, the Memorandum of Procedure may provide for the establishment of aSecretariat for each High Court and the Supreme Court and prescribe itsfunctions, duties and responsibilities.ComplaintsThe Memorandum of Procedure may provide for an appropriate mechanism andprocedure for dealing with complaints against anyone who is beingconsidered for appointment as a Judge.MiscellaneousThe Memorandum of Procedure may provide for any other matter consideredappropriate for ensuring transparency and accountability includinginteraction with the recommendee(s) by the collegium of the Supreme Court,without sacrificing the confidentiality of the appointment process.11. It is made clear that the guidelines mentioned above are only broadsuggestions for consideration and supplementing the Memorandum of Procedurefor the faithful implementation of the principles laid down in the SecondJudges case and the Third Judges case.(Renuka Sadana) (Parveen Kr. Chawla) Court Master AR-cum-PS-----------------------[1] Supreme Court Advocates-on-Record Association v. Union of India,(1993) 4 SCC 441[2] Special Reference No. 1 of 1998, (1998) 7 SCC 739
Mohit Singh
Mohit Singh is an advocate at the Supreme Court of India.
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