Prepare Draft Memorandum of Procedure on Appointment of Judges to Higher Judiciary: SC to Government

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Who: SC directive to Union Government on improvements to collegium system
What: Delivered
When: 16 December 2015

The Supreme Court on 16 December 2015 directed the Union Government to Prepare Draft Memorandum of Procedure on Appointment of Judges to Higher Judiciary. The directive was given by five-judge Constitutional Bench headed by Justice JS Khehar and consisted of J Chelameswar, Madan B Lokur, Kurian Joseph and AK Goel.

Further, it asked the Chief Justice of India to make his recommendation to the memorandum in consultation with the four senior most puisne judges of the Supreme Court.

Four point suggestion to make Collegium system transparent

In order to ensure transparency the bench asked the government to prepare the draft by incorporating following four points

• How the Collegium can be made transparent
• The eligibility criteria to be fixed for persons to be considered suitable for appointment as a judge
• A mechanism to receive and deal with complaints against judges without compromising on judicial independence
• Whether a separate secretariat is required, and if so, its functioning, composition and powers.

Other directives to the Government

• A minimum age should be prescribed for persons in the zone of consideration for elevation to the Bench in both HCs and the Supreme Court.
• The final memorandum of procedure be put up on the websites of all the HCs and the Supreme Court.
• A record of dissenting opinions of sitting judges against a particular candidate should be maintained for transparency.
Independent secretariats should be established in every High Court for streamlining the appointment process and receiving of complaints.

However, the Bench kept it open for the government and the highest judiciary to introduce further suggestions into the memorandum of procedure without sacrificing the requirements of confidentiality.

The directives was a follow-up to the 16 October 2015 Judgment in which the same bench of SC ruled that 99th Constitutional Amendment Act and the National Judicial Appointments Commission (NJAC) Act, 2014 is unconstitutional and void.

The act was intended to replace the collegium system in appointing and transferring of High Court and Supreme Court judges. In the same judgment the court observed though there is no need to replace the collegium system it need improvements.