MoP for the appointment of judges: Law Minister’s suggestion to CJI on appointment of judges: The context and background, explained

Source: The post is based on the articles

“Law Minister Kiren Rijiju’s suggestion to CJI DY Chandrachud on appointment of judges: The context and background, explained” published in the Indian Express on 17th January 2023

“Be Wise, Centre & SC – Better than court’s stand & GoI’s proposal is revising the collegium’s memorandum of procedure” published in The Times of India on 17th January 2023

What is the News?

Union Minister for Law and Justice has written to the Chief Justice of India (CJI) “suggesting” that a nominee of the government should be included in the collegium that makes recommendations for the appointment of judges.

The letter offered the suggestion since the Memorandum of Procedure (MoP) is “pending finalisation”.

What is the Memorandum of Procedure (MoP) for the appointment of judges?

The MoP is the official playbook agreed upon by the government and the judiciary on the appointment of judges. It is a crucial document that governs the collegium system of appointing judges.

The collegium system evolved through a series of rulings by the Supreme Court and is not based on legislation. Hence, the MoP is the bedrock of the process of appointments.

What is the collegium?
Read Here: Explained | The workings of the Supreme Court collegium
What are the three Judge’s Cases?
Must read: The Collegium System – Explained Pointwise
About the role of MoP after NJAC

The MoP was sought to be re-negotiated after the SC struck down the constitutional amendment that had brought in the National Judicial Appointments Commission (NJAC).

However, before the document could be finalised, the Supreme Court in a judgment observed that “there is a need to revisit the process of selection and appointment of Judges to the Constitutional Courts.”

About the court’s observation on the appointment of Judges

In a suo motu contempt case, in 2017, the SC highlights two things, a) The need to revisit the process of selection and appointment of judges to the constitutional courts, for that matter any member of the judiciary at all levels; and b) The need to set up an appropriate legal regime to deal with situations where the conduct of a Judge of a constitutional court requires corrective measures — other than impeachment — to be taken.

What was the government’s view on MoP?

In its 123rd Action Taken Report presented to Rajya Sabha in 2022, the Standing Committee said that it was surprised to note that the SC and the Government have failed to reach a consensus on the revision of the MoP, though the same is under consideration for about seven years now.

The Committee said that it “expects the Government and the Judiciary to finalize the revised MoP, which is more efficient and transparent, in terms of the Supreme Court’s observation.” Officially, the government’s stand is that the MoP is “pending finalisation”.

What needs to be done?

Centre’s primary concern about the present collegium system appears to be the lack of transparency, hence the MoP revision should be revived.

The GoI can make another attempt to re-enact NJAC. This time with proper discussions with SC to address the legal challenges.

 

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