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Campaign for Judicial Accountability and Reforms

PROPOSED AMENDMENTS TO THE MEMORANDUM OF PROCEDURE FOR APPOINTMENT OF JUDGES OF THE SUPREME COURT OF INDIA AND HIGH COURTS

In its order dated 16th December 2015,1 a Constitution bench of the Supreme Court2 left the

task of amending the Memorandum of Procedure (MoP) for appointment of judges of the

higher judiciary to the Union Government and outlined certain basic suggestions for the

same. In consonance with its earlier order,3 the Bench culled out four crucial parameters,

namely, transparency in judge selection process, formation of a secretariat, eligibility criteria

and complaints against persons being considered, to be accounted for by the Government

while drafting the new MoP. Further, it ruled that the government would finalise the MoP

after supplementing suggestions from the Chief Justice of India, which include the

unanimous decision of the Supreme Court collegium.4

At the outset, it must be noted that the existing Memorandum of Procedure for Appointment

of Judges of the Supreme Court,5 does not have any provisions falling under any of the

categories suggested by the Supreme Court. Thus, based on the suggestions made by the

Supreme Court,6 the following aspects should be added to the MoP by way of amendments:

1. Eligibility criteria for persons to be considered for appointment as a judge

Presently, there are no criteria for appointments mentioned in the MoP. According to the

Supreme Court’s suggestion, such criteria should include a prescribed minimum age for

persons in the zone of consideration for elevation to the Bench (in both High Courts as well

as the Supreme Court). While the order of the Supreme Court has only listed out age as one

of the criteria, a full conspectus of the order suggests that this is not the only eligibility

criteria there can be and others may be incorporated as necessary. Since eligibility criteria

1 Supreme Court Advocates-on-Record Association and Another v. Union of India, available at http://supremecourtofindia.nic.in/FileServer/2015-12-16_1450258558.pdf.2 Comprising of Justices JS Khehar, J Chelameswar, Madan B Lokur, Kurian Joseph and AK Goel.3 Supreme Court Advocates-on-Record Association and Another v. Union of India (5th November, 2015), available at http://supremecourtofindia.nic.in/FileServer/2015-11-05_1446719693.pdf.4 http://articles.economictimes.indiatimes.com/2015-12-24/news/69282611_1_collegium-national-judicial-appointments-commission-njac5 Available at http://doj.gov.in/sites/default/files/memosc.pdf.6 See Para 10, Supreme Court Advocates-on-Record Association and Another v. Union of India (16th December, 2015).

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have not been expressly stated anywhere, and to ensure greater transparency in the process,

they are being mentioned here by way of guidance to the judges of the Collegium.

To this end, the proposed changes to the MoP to the above effect are as follows:

With respect to appointment of Supreme Court judges:

a. Insert paragraph 3.1.1 as follows:

“3.1.1 In preparing a list of persons eligible to be appointed as a judge of the Supreme

Court, the Collegium shall ensure that persons being considered for appointment are

not less than 50 years of age and not more than 60 years of age as on date of

consideration.

Provided that the Collegium may relax the above requirement in exceptional cases for

reasons recorded in writing.”

b. Insert paragraph 3.1.2 as follows:

“3.1.2 In recommending persons for appointment to the Supreme Court, the

Collegium shall take into account the following criteria (in no particular order):

a. In the case of a person who is a judge of the High Court at the time of

appointment:

i. Integrity

ii. Independence in functioning

iii. Number of years for which the person has been a judge of the High

Court or any court.

iv. Number of cases disposed as a judge of the High Court.

v. Number of judgments delivered that have been reported in journals

vi. Overall percentage of judgments overturned in appeal by Division

Bench or the Supreme Court

vii. Any instances of strictures or sanctions imposed by a superior court or

authority in respect of the judicial functions.

viii. Any pending allegations of impropriety or misbehavior that are being

considered in the In-House Procedure or referred for impeachment.

ix. Understanding of and adherence to the basic principles and values of

the Constitution of India as reflected in his judgments and public

behavior.

x. Evidence of activities/public statements which reflect his

understanding of the social reality of the country.

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xi. Judicial temperament in conduct of hearings.

b. In the case of a person who is an advocate at the time of appointment:

i. Integrity and character

ii. Number of years of practice at the Bar

iii. Public spiritedness as displayed in his professional and/or other public

activities. (For eg. Number of cases appeared in pro-bono or for the

Legal Services Authority per year in the last five years.)

iv. Number of reported judgments appeared in as lead counsel.

v. Any instances of adverse remarks passed in a judgment against the

conduct of the advocate.

vi. Any pending instances of malpractice pending enquiry before the

appropriate Bar Council.

vii. Understanding of and adherence to the basic principles and values of

the Constitution of India as reflected in his public behavior.

viii. Evidence of activities/public statements which reflect his


ix. Regular filing of tax returns along with asset declaration.

Provided that in making recommendations, the collegium shall strive to ensure that

the composition of the Supreme Court adequately reflects the diversity of India with

respect to representation of women, Scheduled Castes, Scheduled Tribes, other

backward classes and the distinct geographical regions of India.”

With respect to appointment of High Court judges:

a. Insert paragraph 5.1.1. as follows:

“5.1.1. In recommending the appointment of a puisne judge of a High Court as the

Chief Justice of that or any other High Court, the collegium shall ensure that judges

being considered for appointment are not less than 50 years of age and not more than

60 years of age as on date of consideration.



b. Insert paragraph 5.1.2 as follows:

“5.1.2 In recommending the appointment of a puisne judge of a High Court as the

Chief Justice of that or any other High Court, the collegium shall take into account the

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criteria set out in sub-paragraph (a) of paragraph 3.1.2 of the Memorandum of

Procedure Showing the Procedure for Appointment of the Chief Justice of India and

Judges of the Supreme Court of India.

c. Insert paragraph 12.1 as follows:

“12.1 In recommending the appointment of a permanent judge to the High Court, the

collegium shall ensure that judges being considered for appointment are not less than

40 years of age and not more than 55 years of age as on date of consideration.



d. Insert paragraph 12.2 as follows:

“12.2 In recommending the appointment of a permanent judge to the High Court, the

collegium shall take into account the following criteria: (in no particular order):

a. In the case of a person who is an additional judge of the High Court or a judge

of the District Court at the time of appointment:

i. Integrity

ii. Independence in functioning.

iii. Number of years for which the person has been a judge of the High

Court or any court.

iv. Number of cases disposed as a judge of the High Court.

v. Number of judgments reported in journals

vi. Overall percentage of judgments overturned in appeal by Division

Bench or the Supreme Court.

vii. Any instances of strictures or sanctions imposed by a superior court

or authority in respect of the judicial functions.

viii. Any pending allegations of impropriety or misbehavior that are being

considered in the In-House Procedure or referred for impeachment.

ix. Understanding of and adherence to the basic principles and values of

the Constitution of India as reflected in his judgments and public

behavior.

x. Evidence of activities/public statements which reflect his


xi. Judicial temperament in the conduct of hearings

b. In the case of a person who is an advocate at the time of appointment:

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i. Integrity

ii. Number of years of practice at the Bar.

iii. Public spiritedness as displayed in his professional and/or other

public activities. (For eg. Number of cases appeared in pro-bono or

for the Legal Services Authority per year in the last five years.)

iv. Number of reported cases appeared in.

v. Any instances of adverse remarks passed in a judgment against the

conduct of the advocate.

vi. Any pending instances of malpractice pending enquiry before the

appropriate Bar Council.

vii. Understanding of and adherence to the basic principles and values of

the Constitution of India as reflected in his public behavior.

viii. Evidence of activities/public statements which reflect his


Provided that the collegium shall strive to ensure that the composition of the High

Court adequately reflects the diversity of the State or States over which it has

jurisdiction with respect to representation of women, Scheduled Castes, Scheduled

Tribes, other backward classes and the distinct geographical regions of over which it

has jurisdiction.”

2. Transparency in appointments process

With respect to transparency in the appointment process, an amendment should be made to

provide for an appropriate procedure to minute the discussions relating to appointment

including the recording of dissenting opinion of the judges in the collegium. At the same

time, a provision must be made to protect the confidentiality of these minutes. Further, the

eligibility criteria and the procedure detailed in the MoP should be made available on the

website of the concerned Court and the Department of Justice of the Government of India.

Irrespective of whether collegium proceedings are covered under the Right to Information

Act, 2005, the Supreme Court should be obligated to make them public with confidential

information or any details of such nature suitably redacted.

To this end, the following amendments are proposed to the MoP:

With respect to appointment of Supreme Court judges:

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a. Insert paragraph 9 as follows:

“9. Transparency: Minutes of all meetings of the Collegium of judges for the

appointment of judges shall be duly maintained by the Registrar

(Appointments) who shall upload the minutes of the meeting to the website of

the Supreme Court within 24 hours of the meeting.

Provided, the minutes shall ensure confidentiality of the proceedings and not

identify the specific members of the collegium who have decided in a

particular manner with respect to appointment or non-appointment of a certain

judge.

Provided further, the minutes shall not reveal any information of a personal

nature about any person who has been considered for recommendation or

actually recommended for appointment as a judge.

9.1. Advertisement of vacancy – twelve months before the vacancy to the

position of a Judge of the Supreme Court is due to arise, the proposed

appointment should be advertised on the website for the public to make

applications or send in their nominations.

9.2 The names of short listed candidates should be put out on the website at

least eight weeks before the collegium meets to select the judges so that the

public has an opportunity to send in relevant information or objections to the

proposed appointments.

9.3 The Registrar (Appointments) shall also upload all the available details of

persons shortlisted for appointment as judges, including details related to

income tax returns and asset declarations.

With respect to the appointment of High Court judges:

b. Insert paragraph 28 as follows:

“28. Transparency: Minutes of all meetings of the Collegium of judges for the

appointment of judges shall be duly maintained by the concerned Registrar

(Appointments) who shall upload the minutes of the meeting to the website of

the Supreme Court within 24 hours of the meeting.

Provided, the minutes shall ensure confidentiality of the proceedings and not

identify the specific members of the collegium who have decided in a

particular manner with respect to appointment or non-appointment of a certain

judge.

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Provided further, the minutes shall not reveal any information of a personal

nature about any person who has been considered for recommendation or

actually recommended for appointment as a judge”

28.1 Advertisement of vacancy – Twelve months before the vacancy to the

position of a Judge of the High Court is due to arise, the proposed appointment

should be advertised on the website for the public to make applications or send

in their nominations. A prescribed format for application should be followed.

28.2 The names of short listed candidates should be put out on the website at

least eight weeks before the collegium meets to select the judges so that the

public has an opportunity to send in relevant information or objections to the

proposed appointments.

28.3 The Registrar (Appointments) shall also upload all the available details of

persons shortlisted for appointment as judges, including details related to

income tax returns and asset declarations.

3. Secretariat to the assist the Supreme Court and High Courts in appointment of judges

The present Collegium comprises of an ex-officio body of sitting senior-most

judges of the Supreme Court. Selecting more than 100 judges of the higher

judiciary every year (from amongst thousands of potential candidates) in a

rational and fair manner is an onerous task, ideally requiring a full-time and

not an ex-officio body. A secretariat should be established and its duties and

responsibilities should be clearly laid down for the effective management of

the system of appointment of judges and to provide full time support to the

collegium in the exercise of their duties. The secretariat should be composed

of five persons appointed by all the judges of the Supreme court and may

consist of officials and non-officials. The Registrar (Appointments) shall be a

person qualified to be appointed Registrar of the Supreme Court or High Court

as the case may be and shall also act as Secretary to the meetings of the

Collegium and be responsible for uploading the minutes et al. The members of

the secretariat shall have a tenure of three years unless they resign or are

replaced by the full court. The functions of the Secretariat will include:

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i. Secretarial services for the meetings of the collegium such as notice of meetings, noting minutes, putting up the minutes, providing necessary information, etc.

ii. Create a database of judges and their tenures and keep the CJI/CJ informed of

possible retirements and vacancies six months before the post is to become

vacant.

iii. Act as a repository for information about High Court/District Court judges.

iv. Act as a repository for information about advocates in the zone of

consideration.

v. Prepare a shortlist of candidates for the consideration of the collegium.

For the above purposes the following changes are to be made to the Memorandum of

Procedure

With respect to the appointment of Supreme Court judges:

a. Insert paragraph 10 as follows:

“10. There shall be a Secretariat to the Supreme Court for the purposes of assisting the

Chief Justice of India and the collegium of judges with the task of appointment of

judges in accordance with the present Memorandum of Procedure.

(a) There shall be Registrar (Appointments) who shall be in charge of the Secretariat

having the same qualifications and emoluments as a Registrar of the Supreme

Court of India.

(b) The Registrar (Appointments) shall be appointed by the Chief Justice of India for

a period of three years and may be re-appointed at the end of such period of three

years.

(c) The Registrar (Appointments) shall carry out such functions as may be delegated

to him/her by the Chief Justice of India for the purposes of this Memorandum.

(d) The Secretariat shall be composed of such officers and servants of the Supreme

Court as may be deputed to it by the Chief Justice of India as are necessary for it

to carry out its functions.

(e) The functions of the Secretariat shall be as follows:

1. To provide secretarial services to the Collegium in the performance of its

duties in accordance with the Memorandum of Procedure.

2. Collect and process information about High Court judges and persons being

considered for appointment to the Supreme Court of India for the purposes of

this Memorandum of Procedure.

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3. Prepare a database of High Court judges for the ready perusal of the

Collegium in making appointments and assessing vacancies.

4. To prepare a shortlist of persons eligible on the basis of the criteria for

selection.

Provided that, when preparing a shortlist of persons eligible to be appointed to

a vacancy or vacancies, the Secretariat shall ensure that at least fifty percent of

the persons shortlisted are women, minorities, belong to Scheduled Castes or

Scheduled Tribes or other backward classes.

5. Any other functions as maybe delegated to it by the Chief Justice of India for

the purposes of this Memorandum of Procedure.

(f) All expenses of the Secretariat shall be charged to the Consolidated Fund of India

as the expenses of the Supreme Court of India.

With respect to the appointment of High Court judges:

b. Insert paragraph 29 as follows:

“29. There shall be a Secretariat to every High Court for the purposes of assisting the

Chief Justice of the High Court and the collegium of judges with the task of

recommendation of judges in accordance with the present Memorandum of

Procedure.

(a) There shall be Registrar (Appointments) who shall be in charge of the Secretariat

having the same qualifications and emoluments as a Registrar of the High Court.

(b) The Registrar (Appointments) shall be appointed by the Chief Justice of that High

Court for a period of three years and may be re-appointed at the end of such

period of three years.

(c) The Registrar (Appointments) shall carry out such functions as may be delegated

to him/her by the Chief Justice of that High Court for the purposes of this

Memorandum.

(d) The Secretariat shall be composed of such officers and servants of the High Court

as may be deputed to it by the Chief Justice of that High Court as are necessary

for it to carry out its functions.

(e) The functions of the Secretariat shall be as follows:

1. To provide secretarial services to the Collegium in the performance of its

duties in accordance with the Memorandum of Procedure.

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2. Collect and process information about High Court judges and persons being

considered for appointment to the Supreme Court of India for the purposes of

this Memorandum of Procedure.

3. Prepare a database of High Court judges for the ready perusal of the

Collegium in making appointments and assessing vacancies.

4. To prepare a shortlist of persons eligible on the basis of the criteria for

selection.

Provided that, when preparing a shortlist of persons eligible to be appointed to

a vacancy or vacancies, the Secretariat shall ensure that at least fifty percent of

the persons shortlisted are women, minorities, belong to Scheduled Castes or

Scheduled Tribes or other backward classes.

5. Any other functions as maybe delegated to it by the Chief Justice of India for

the purposes of this Memorandum of Procedure.

(f) All expenses of the Secretariat shall be charged to the Consolidated Fund of the

respective States as the expenses of the respective High Courts.”

4. Complaints procedure

Mechanism and procedure to deal with complaints against anyone who is being considered

for appointment as a judge should be included. To avoid the process from being abused, the

following safeguards may be introduced namely:

i. No anonymous complaints are to be entertained unless they have been accompanied by

sufficient material to suggest that the complaint should be proceeded with. However, in

the interests of protecting the identity of a whistleblower who may be victimized by the

person being complained against, the Collegium may not disclose the name of the

complainant at its discretion.

ii. Complaints may be made by any person only once the names of persons recommended

to be judges are made public and prior to the appointment of such person as a judge.

iii. If the collegium finds prima facie merit in the complaint, it may put such

recommendation on hold and give the person complained against a chance to respond to

the complaint in writing or through a personal hearing as deemed necessary.

iv. If the collegium is unsatisfied with the response of the person complained against, it

shall withdraw the recommendation of that person and initiate the procedure a fresh to

appoint a new candidate to the post.

For the above purposes the following amendments may be made to the MoP:

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For the appointment of Supreme Court judges:

a. The following paragraphs may be inserted after paragraph 10 mentioned

above:

“11.1. At any point after a recommendation has been made by the

Collegium for the appointment of a person to the post of Judge of the

Supreme Court, but prior to the appointment of such person by the

President, the Collegium may withdraw such recommendation and start the

appointment process afresh, if on the basis of a complaint received and

enquiry conducted on such complaint, finds that there are sufficient

reasons to withdraw such recommendation.

Provided that any complaint that does not contain material particulars

related to the complainant’s name and identity shall not be acted upon by

the Collegium.

Provided further that if the Collegium is of the view that a complaint not

containing material particulars of name and identity of the complainant but

nonetheless contains sufficient material to make out a prima facie justified

complaint, it shall entertain and act upon the same.

11.2. The Secretariat shall respond to all complaints informing the

complainant whether the collegium has considered the complaint and what

action is being taken, if any, within a period of four weeks from the date of

receipt of the complaint.

11.3 Where the Collegium finds that prima facie, a complaint is justified,

it shall give the person against whom the complaint is made an opportunity

to rebut the averments in the complaint in writing.

Provided that if the person against whom a complaint is made so requests,

he shall be given an oral hearing by the Collegium.

11.4 After giving a hearing as envisaged in paragraph 11.2 above, the

Collegium shall record reasons in writing for withdrawing or re-iterating

the recommendation as the case may be.

11.5 Where the Collegium is of the view that the complainant may be

victimized by the person being complained against in the future, it shall

not make the name of the complainant or his identity public in any

manner.”

For the appointment of High Court judges:

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b. The following paragraphs may be inserted after paragraph 29 mentioned

above:

“29.1. At any point after a recommendation has been made by the

Collegium for the appointment of a person to the post of Chief Justice or

Judge of the High Court (whether permanent or additional), but prior to the

appointment of such person by the President, the Collegium may withdraw

such recommendation and start the appointment process afresh, if on the

basis of a complaint received and enquiry conducted on such complaint,

finds that there are sufficient reasons to withdraw such recommendation.

Provided that any complaint that does not contain material particulars

related to the complainant’s name and identity shall not be acted upon by

the Collegium.

Provided further that if the Collegium is of the view that a complaint not

containing material particulars of name and identity of the complainant but

nonetheless contains sufficient material to make out a prima facie justified

complaint, it shall entertain and act upon the same.

29.2. The Secretariat shall respond to all complaints informing the

complainant whether the collegium has considered the complaint and what

action is being taken, if any, within a period of four weeks from the date of

receipt of the complaint.

29.3. Where the Collegium finds that prima facie, a complaint is justified,

it shall give the person against whom the complaint is made an opportunity

to rebut the averments in the complaint in writing.

Provided that if the person against whom a complaint is made so requests,

he shall be given an oral hearing by the Collegium.

29.4 After giving a hearing as envisaged in paragraph 11.2 above, the

Collegium shall record reasons in writing for withdrawing or re-iterating

the recommendation as the case may be.

29.5 Where the Collegium is of the view that the complainant may be

victimized by the person being complained against in the future, it shall

not make the name of the complainant or his identity public in any

manner.”

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5. Interaction with Appointees

Provision for any other appropriate matter that secures transparency and accountability of the

appointment process should be made. To use an example from another jurisdiction,

candidates for Federal Courts have to be approved by the Senate in the United States of

America in a public hearing. This ensures transparency and allows the public to scrutinize the

merits of the candidate. A similar process may be adapted and adopted to ensure transparency

in India as well. To this end, a provision allowing interaction between the proposed appointee

and the collegium may be made as long as the confidentiality of the appointment process is

not sacrificed. An enabling provision may be inserted into the MoP allowing the judges of the

Collegium to have an interaction with the candidates being considered for appointment before

they make the recommendation to the Government. Since it may not be feasible for the

Supreme Court to have an interaction with all judges of the High Court, in the case of the

High Court judges (except in the case of appointment of Chief Justice in which case the

Supreme Court collegium will hold such interactions.)

For this purpose, the following amendments may be made to the Memorandum of

Procedure:

For the appointment of judges to the Supreme Court:

a. Insert the following paragraph 3.4.1 after paragraph 3.4 as follows:

“3.4.1. At any time prior to sending the recommendation of a person to be

appointed as judge of the Supreme Court, the Collegium shall interact with the

person being considered for the post of judge of the Supreme Court of India to

assess suitability of such person to the post of Supreme Court judge and in the

interests of transparency. The Secretariat shall maintain details of such interaction,

by way of a video recording of such interaction, and make the same public subject

to ensuring confidentiality of the interactions.”

For the appointment of judges to the High Court:

b. Insert the following paragraph 5.2.1 after paragraph 5.2 as follows:

“5.2. At any time prior to sending the recommendation of a person to be appointed

as Chief Justice of a High Court, the Collegium shall interact with the person

being considered for the post of Chief Justice of a High Court to assess suitability

of such person to the post of Chief Justice of a High Court, and in the interests of

transparency. The Secretariat shall maintain details of such interaction, by way of

a video recording of such interaction, and make the same public subject to

ensuring confidentiality of the interactions.”

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c. Insert the following paragraph 20.1 after paragraph 20 as follows:

“20.1. At any time prior to sending the recommendation of a person to be

appointed as an additional judge of the High Court to the Chief Justice of India,

the Chief Justice of the High Court and the two senior-most puisne judges of that

High Court may interact with the person being considered for the post of judge of

that High Court to assess suitability of such person to the post of High Court judge

and in the interests of transparency. The Secretariat shall maintain details of such

interaction and may make them public subject to ensuring confidentiality of the

interactions.”

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mop suggestions sent to arun jaitley

Law