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- Today, on December 16, 2015, Supreme Court passed an order directing government of India to prepare a Memorandum of Procedure dealing with appointment of judges in higher judiciary. - The SC has shown trust in Parliament leaving the task of improving current procedure of collegium system. - Relevant paragraphs of the SC order. - Current CJI has declined appointing next batches of judges in higher judiciary with the current system of collegium system. IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 13 OF 2015 Supreme Court Advocates-on-Record Association and Another …. Petitioners versus Union of India … Respondent - It is important to note that the compilation of the written suggestions placed before us was in the nature of a summary prepared out of approximately 11,500 pages of views expressed. We had a very challenging responsibility to embark upon and reflect, and thereafter, to sieve such of the suggestions as were likely to improve the “collegium system”. Only then would we be in a position to sponsor their introduction into the Memorandum of Procedure for the appointment of Judges of the higher judiciary. - Even though the task seemed to be daunting, we felt obliged to take up the responsibility, as it was after all, for an improvement of the judicial system and such an opportunity must not be lost. It was at this stage of our reflection, that the learned Attorney General made an impassioned submission, not in any obstructive manner, but as a matter of faithful assistance, suggesting that we should desist from pursuing the contemplated course of action. In this behalf it was pointed out, that the formulation of the Memorandum of Procedure was an administrative responsibility which fell in the executive domain. It was submitted that this Court neither had the expertise nor the wherewithal for proposing amendments in the existing Memorandum of Procedure (drawn on 30th June, 1999 by the Government of India), for improving the collegium system. The learned Attorney General in his submission candidly invited our attention to the following observations recorded in paragraph 478 of the Second Judges case1: ….(13) On initiation of the proposal by the Chief Justice of India or the Chief Justice of the High Court, as the case may be, copies thereof should be sent simultaneously to all the other constitutional functionaries involved. Within the period of six weeks from receipt of the same, the other functionaries must convey their opinion to the Chief Justice of India. In case any such functionary disagrees, it should convey its disagreement within that period to the others. The others, if they change their earlier opinion, must, within a further period of six weeks, so convey it to the Chief Justice of India. The Chief Justice of India would then form his final opinion and convey it to the President within four weeks, for final action to be taken. It is appropriate that a memorandum of procedure be issued by the Government of India to this effect, after consulting the Chief Justice of India, and with the modifications, if any, suggested by the Chief Justice of India to effectuate the purpose. It was submitted that even the nine-Judge Bench had left the task of drawing up the Memorandum of Procedure to the Government of India. - During the course of hearing, we were also informed by the learned Attorney General, that the Memorandum of Procedure and introducing amendments therein, had always been prepared by the Government of India in consultation with the President of India and the Chief Justice of India. This practice, we were informed, had been consistently adopted, in consonance with 2 Special Reference No. 1 of 1998, (1998) 7 SCC 739 the directions contained in paragraph 478 of the Second Judges case. In order 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 task was entrusted to the executive. We are in complete agreement with the suggestion of the learned Attorney General. - In view of the above, the Government of India may finalize the existing Memorandum of Procedure by supplementing it in consultation with the Chief Justice of India. The Chief Justice of India will take a decision based on the unanimous view of the collegium comprising the four seniormost puisne Judges of the Supreme Court. They shall take the following factors into consideration: Eligibility criteria The Memorandum of Procedure may indicate the eligibility criteria, such as the minimum age, for the guidance of the collegium (both at the level of the High Court and the Supreme Court) for appointment of Judges, after inviting and taking into consideration the views of the State Government and the Government of India (as the case may be) from time to time. Transparency in the appointment process The eligibility criteria and the procedure as detailed in the Memorandum of Procedure for the appointment of Judges ought to be made available on the website of the Court concerned and on the website of the Department of Justice of the Government of India. The Memorandum of Procedure may provide for an appropriate procedure for minuting the discussions including recording the dissenting opinion of the Judges in the collegium while making provision for the confidentiality of the minutes consistent with the requirement of transparency in the system of appointment of Judges. Secretariat In the interest of better management of the system of appointment of Judges, the Memorandum of Procedure may provide for the establishment of a Secretariat for each High Court and the Supreme Court and prescribe its functions, duties and responsibilities. Complaints The Memorandum of Procedure may provide for an appropriate mechanism and procedure for dealing with complaints against anyone who is being considered for appointment as a Judge. Miscellaneous The Memorandum of Procedure may provide for any other matter considered appropriate for ensuring transparency and accountability including interaction with the recommendee(s) by the collegium of the Supreme Court, without sacrificing the confidentiality of the appointment process. - It is made clear that the guidelines mentioned above are only broad suggestions for consideration and supplementing the Memorandum of Procedure for the faithful implementation of the principles laid down in the Second Judges case and the Third Judges case. - In view of the above, all matters having been collectively heard, are disposed of. …..…………………………J (Jagdish Singh Khehar) …..…………………………J Chelameswar) …….…………………………J (Madan B. Lokur) …….…………………………J (Kurian Joseph) …….…………………………J (Adarsh Kumar Goel) New Delhi, December 16, 2015
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न्यायाधीश नियुक्तिको प्रक्रियासम्बन्धी निर्देशिका : कामु मुख्य रजिष्ट्रारको आदेश बदर न्यायाधीश नियुक्तिको प्रक्रियासम्बन्धी निर्देशिकामा देखिएको विवादका सम्बन्धमा सर्वोच्च अदालतले निरुपण गर्ने भएको छ । सर्वोच्च अदालतले सो प्रयोजनका लागि यसअघि कायम मुकायम मुख्य रजिष्ट्रारले गरेको दरपीठ आदेश बदर गरिदिएको छ । बुधबार सर्वोच्चका न्यायाधीश मनोजकुमार शर्माको एकल इजलासले अधिवक्ता कीर्तिनाथ शर्माले न्यायपरिषद सचिवालयविरुद्ध दायर गरेको रिटमा सुनुवाइ गर्दै यस्तो आदेश जारी गरेको हो । ‘निवेदकहरुले आफ्नो रिट निवेदनमा न्यायाधीश नियुक्तिको प्रकृया सम्बन्धी निर्देशिका, २०७९ को दफा ५ (३) को व्यवस्था नेपालको संविधानको धारा १७ को प्रतिकूल रहेको, दफा ५(६) को व्यवस्था ऐको धारा १८ प्रतिकूल रहेको र अनुसूची–२ को ५ नम्बरको बुँदा ऐ को धारा १७ तथा २५ को प्रतिकूल रहेको भन्ने समेतका विषयहरु उठान गर्नु भएको देखियो। निवेदकले निवेदनमा उठाएका उल्लेखित विषयहरु इजलासबाट निरुपण हुनुपर्ने प्रकृतिको देखिएकोले यस अदालतका कामु मुख्य रजिष्ट्रारबाट मिति २०७९।४।१९ मा भएको दरपीठ आदेश बदर गरी दिएको छ। नियमानुसार गरी पेश गर्नू ।’, आदेशमा भनिएको छ । रिट निवेदनमा न्यायाधीश नियुक्तिको प्रक्रियासम्बन्धी निर्देशिका–२०७९ सुरुवाती अवस्थामै अव्यवहारिक र त्रुटिपूर्ण भएको उल्लेख गरिएको छ । कमेन्ट कमेन्ट गर्नुहोस् तपाईको ईमेल गोप्य राखिनेछ यो पनि पढौँ रातोपाटीको अंग्रेजी, हिन्दी र ग्लोबल संस्करणका साथै अनलाइन टिभी पनि सञ्चालित छ । एप्सबाट सिधै समाचार पढ्न एन्ड्रोइडका लागि यहाँ र आइफोनका लागि यहाँ क्लिक गर्नुहोस् । फेसबुक र ट्वीटरमार्फत पनि हामीसँग जोडिन सकिनेछ ।