PMO asks Law Ministry to finalise MoP

Memorandum of Procedure is a document that guides appointment of judges to higher judiciary

The Prime Minister's Office has nudged the Law Ministry to finalise the new Memorandum of Procedure, a document which guides the appointment of judges to the higher judiciary, so it can be handed over to the Chief Justice of India for a final decision.

In a letter to the Law Ministry on Wednesday, the PMO asked it to give final shape to the document after consulting the Attorney General.

The Supreme Court had late last year asked the government to draft a fresh MoP in consultation with states and high courts.

Chief Justice of India and members of the collegium will take a final call on the draft memorandum of procedure which the government will hand over to the CJI in the coming days.

The earlier drafts were also prepared after consulting Attorney General Mukul Rohatgi.

The MoP is a roadmap on how a judge will be appointed.

As of now, there are two MoPs -- one dealing with appointment of Chief Justice of India and other judges of the Supreme Court and the other dealing with appointment of chief justices and other judges of high courts.

The draft MoP for appointment of members to the higher judiciary is being prepared after the Supreme Court struck down the National Judicial Appointments Commission (NJAC) Act on appointment of judges to the apex court and high courts.

While deciding on ways to improve the collegium system, the Supreme Court had left it to the Law Ministry to draft the MoP in consultation with CMs and chief justices of the 24 high courts.

However, despite reminders, only eight states, including Gujarat, Nagaland and Meghalaya have responded with their suggestions.

The government is unlikely to suggest bringing under the ambit of RTI the process of appointment of judges to the Supreme Court and the high courts as it feels it would not be a practical idea.
There is a feeling within the government, sources said,

that bringing the process of appointment and elevation of judges to the Supreme Court and the 24 high courts under the transparency law would not be practical as the collegium will be flooded by RTI applications from candidates and other "interested parties" seeking file notings and other details.

But at the same time, amid calls to make the system of appointment of members to the higher judiciary more transparent, government is likely to include a clause that any dissent note to a recommendation of the collegium to appoint or elevate a judge should be mandatorily shared with the Executive.

When the Supreme Court was hearing ways to improve the collegium system, government had pressed for bringing the system of appointment under the ambit of RTI to usher in greater transparency.

The four issues highlighted by the draft MoP are transparency in the appointment process, eligibility criteria, a permanent secretariat for the collegium and a process to evaluate and deal with complaints against candidates.

Government and judiciary are learnt to be on the same page on the issue of creating a permanent secretariat.

Earlier the CJI had decided to wait for the fresh MoP before recommending transfers and appointments. But later the SC collegium started recommending transfers and elevations as government was taking time in finalising the document.

So far the collegium has refrained from naming people from the lower judiciary and the Bar as judges of high courts or the Supreme Court.