Read Order of Constitution Bench of the Supreme Court to improve working of ‘collegium system’

 download-order                                                                 


                        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
                                    WITH


|WRIT PETITION (C) NO. 14 OF 2015   |WRIT PETITION (C) NO. 18 OF 2015     |
|WRIT PETITION (C) NO. 23 OF 2015   |TRANSFER PETITION (C) NO.24 OF 2015  |
|WRIT PETITION (C) NO. 70 OF 2015   |WRIT PETITION (C) NO. 83 OF 2015     |
|WRIT PETITION (C) NO. 108 OF 2015  |WRIT PETITION (C) NO. 124 OF 2015    |
|WRIT PETITION (C) NO. 209 OF 2015  |WRIT PETITION (C) NO. 309 OF 2015    |
|WRIT PETITION (C) NO. 310 OF 2015  |WRIT PETITION (C) NO. 323 OF 2015    |
|WRIT PETITION (C) NO. 341 OF 2015  |TRANSFER PETITION (C) NO. 391 OF 2015|
|TRANSFER PETITION (C) NO. 971 OF   |                                     |
|2015                               |                                     |



                                  O R D E R

1.     The adjudication on the merits of the  controversy,  raised  in  this
batch of cases, was rendered on  16th  October,  2015,  wherein  a  separate
“Order of the Court” was also recorded.  In paragraph 5 of the Order of  the
Court,  it  was  decided  to  consider  the  incorporation   of   additional
appropriate measures, if any, for an  improved  working  of  the  “collegium
system”.  For the above purpose, hearing was fixed for  (and  commenced  on)
3rd November, 2015.  Mr. Mukul Rohatgi, learned Attorney General for  India,
preferred written suggestions and supplemented them with  oral  submissions.
Likewise, other  learned  senior  counsel  were  also  heard  and  they  too
presented their views.  Submissions were advanced freely,  solely  with  the
objective of introducing measures in the prevailing  “collegium  system”  of
appointment of Judges to the higher judiciary, which in  the  perception  of
the concerned learned counsel, would improve the working of the system.
2.     From the first hearing itself, it emerged that the  suggestions  were
on diverse issues. A  few  suggestions,  though  honestly  and  meaningfully
expressed,  contained  diametrically  opposite  recommendations.    It   was
therefore felt that the  suggestions  received  should  be  compiled  in  an
orderly manner so as to enable all concerned stakeholders to have  a  bird’s
eye view of the same,  thereby  possibly  making  the  debate  thereon  more
judicious.  Accordingly, on the nomination by the learned Attorney  General,
of Mrs. Pinki Anand, Additional Solicitor  General,  and  on  the  unanimous
endorsement of all the learned counsel representing the petitioners, of  Mr.
Arvind P. Datar, Senior Advocate, a two-member  committee  was  constituted.
 The committee was requested  to  make  a  compilation  of  the  suggestions
received upto  4th  November,  2015.   The  above  committee  presented  the
compilation on 5th November, 2015.
3.     After hearing the Chairman of the Bar Council of  India  and  learned
counsel some of whom had travelled from distant States, it was felt  that  a
further opportunity should be afforded to the stakeholders to furnish  their
valuable contributions on the matter.  It is therefore, that  the  following
order came to be passed on 5th November, 2015:
“Mrs. Pinky Anand, learned Additional  Solicitor  General,  and  Mr.  Arvind
Datar, learned Senior  Advocate  have  made  a  compilation  of  suggestions
received up to 23.45 hours on 4.11.2015, in furtherance of our motion  Bench
order dated 3.11.2015. A large number of learned  counsel  have  even  today
prayed for further time to make suggestions. They have  also  requested  for
time on behalf of private individuals for the same purpose.

The Chairman of the Bar Council of India has also made a  prayer,  that  the
Bar Council of India which is the apex body of all the State  Bar  Councils,
be permitted to gather suggestions from all stake holders, and  submit  such
of the suggestions as it approves, for consideration by this Court.

The learned Attorney General for India has  volunteered  to  facilitate  the
prayer made by the learned counsel, by web-hosting the compilation  made  by
the Additional Solicitor General and the learned Senior Counsel referred  to
above, on the web site of the Department of Justice,  Ministry  of  Law  and
Justice, New Delhi, and also, to issue a public notice in the media  seeking
suggestions from all those who may desire  to  make  contribution  by  17.00
hours on 13.11.2015  (up  to  14.11.2015  by  the  Bar  Council  of  India).
Suggestions  may  be  made  in  the  four  categories,  i.e.,  Transparency,
Collegium Secretariat, Eligibility Criteria and Complaints.

We appreciate the efforts made by the learned Attorney  General  for  India.
He may web-host the compilation and issue a WP(C)No.13/15 etc.etc. 8  public
notice. Likewise, all those  who  desire  to  make  suggestions  may  do  so
directly, on the website of the Department of Justice,  Ministry  of  Law  &
Justice, New Delhi. Suggestions received by 17.00 hours on 13.11.2015  shall
be entertained.  No  further  suggestions  will  be  entertained.  All  such
suggestions will be forwarded by the Department of Justice  to  the  learned
counsel who had  assisted  this  Court  in  the  previous  compilation,  for
incorporating  additional  suggestions  in  the  earlier  compilation,   for
consideration.

List on 18.11.2015 for hearing. Hearing shall be limited  to  two  days  and
will conclude on 19.11.2015.  Hearing  shall  be  limited  to  such  of  the
counsel who are short-listed and allowed time by a Committee  comprising  of
learned Attorney General for India, the Chairman, Bar Council of India,  and
Mr. Fali S. Nariman, learned Senior Advocate.  No  other  counsel  shall  be
heard.”

4.     During the resumed hearing, all those  who  desired  to  address  the
Court were  afforded  an  opportunity  of  being  heard.   After  all,  this
assistance to the  Bench  was  being  rendered  pro  bono  publico,  in  the
interest of the judiciary as an institution, as well as for  and  on  behalf
of all stakeholders.
5.     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.
6.     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 case[1]:
“478. ….(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. ….”

                                                         (emphasis supplied)


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.
7.     It was the further submission of the learned  Attorney  General  that
the views expressed by this Court, while disposing of the  main  controversy
would enable the Government of India, to introduce amendments and to  redraw
the existing Memorandum of Procedure with  the  object  of  considering  the
criteria/benchmark for the appointment of Judges of  the  higher  Judiciary,
including widening the zone of consideration; to introduce  transparency  in
the matter of appointment of Judges to the higher  judiciary,  as  would  be
appropriate, keeping in mind the sensitivity  of  the  issue;  to  make  the
present procedure broad based, by introducing supporting  measures,  whereby
candidates can be screened and evaluated, and complaints  against  them  are
evaluated through a Secretariat constituted for the said purpose, under  the
control of the Chief Justice  of  India,  as  supplemental  (and  not  as  a
substitute) to the process contemplated through the Second Judges  case  and
the Third Judges case[2] as well as our judgment on merits  in  the  present
batch of cases.
8.     We may also record,  that  the  introduction  of  the  above  changes
referred to in the  preceding  paragraph,  are  broadly  in  tune  with  the
majority of the suggestions.  These were also  referred  to  by  us  by  the
committee under the category of “transparency”, “secretariat”,  “eligibility
criteria” and “complaints”, in our order dated 5th November, 2015.
9.     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

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.
10.    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.

11.    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.

12.    In view of the above, all matters  having  been  collectively  heard,
are disposed of.


                                                          . .....…………………………J
                                                           (Jagdish    Singh
Khehar)

                                                            .....…………………………J
                                                           (J. Chelameswar)


                                                          .......…………………………J
                                                         (Madan B. Lokur)

                                                          .......…………………………J
                                                        (Kurian Joseph)

                                                          .......…………………………J
New Delhi;                                              (Adarsh Kumar Goel)
December 16, 2015



ITEM NO.1A               COURT NO.3        SECTION X, XVIA, PIL
                    IN THE SUPREME COURT OF INDIA
                       RECORD OF PROCEEDINGS

Writ Petition(s)(Civil) No(s).13/2015

SUPREME     COURT     ADVOCATES-ON-RECORD     ASSOCIATION      AND      ANR.
                                    Petitioner(s)
                                VERSUS

UNION OF INDIA                                    Respondent(s)
WITH
W.P.(C) No.23/2015
W.P.(C) No.70/2015
W.P.(C) No.83/2015
T.P.(C) No.391/2015
W.P.(C) No.108/2015
W.P.(C) No.124/2015
W.P.(C) No.309/2015
W.P.(C) No.310/2015
W.P.(C) No.323/2015
T.P.(C)No.971/2015
W.P.(C)No.341/2015
W.P.(C) No.14/2015
W.P.(C) No.18/2015
W.P.(C) No.24/2015
W.P.(C) No.209/2015
[HEARD BY: HON'BLE JAGDISH  SINGH  KHEHAR,HON'BLE  J.  CHELAMESWAR,  HON'BLE
MADAN B. LOKUR, HON'BLE KURIAN JOSEPH AND HON'BLE ADARSH KUMAR GOEL, JJ.]

Date   :    16/12/2015     These    petitions    were    called    on    for
        pronouncement of Orders today.

For Petitioner(s)   Mr. Surya Kant, Adv.
In WP 13/2015    Mr. Dushyant Parashazr, Adv.
                    Mr. Pranav Vyas, Adv.

For Petitioner(s)   Mr. Dinesh Kumar Garg, AOR
In WP 23/2015

For Petitioner(s)   Mr. Santosh Paul, Adv.
In WP 70/2015    Mr. Joseph Aristotle S., Adv.



For Petitioner(s)   Mr. Prashant Bhushan, AOR
In WP 83/2015

For Petitioner(s)   Mr. Anil B.Divan, Sr. Adv.
In WP 108/2015      Mr.Prashant Kumar, Adv.
                    Ms.Anindita Pujari, Adv.
                    Mr. Syed Rehan, Adv.
                    Mr.Ranvir Singh, Adv.
                    Mr.Jitendra Kr.Mohapatra, Adv.

For Petitioner(s)   Mr. Rabin Majumder, AOR
in WP 124/2015
                    Mr. Ramesh Babu M.R., AOR

For Petitioner(s)   Mr. P.M.Duraiswamy, in person(NP)
in WP 309/2015

For Petitioner(s)   Mr. Subhasish Bhowmick, AOR
in WP 310/2015

For Petitioner(s)   Mr.Rabin Majumder, AOR
in WP 323/2015

In TP(C) 971/15  Ms.Prachi Bajpai, Adv.

In WP(C) 341/15  Mr.Ankur S.Kulkarni, AOR

For Petitioner(s)   Mr. Manohar Lal Sharma, in person   (NP)
in WP 14/2015

For Petitioner(s)   Mr. R.K. Kapoor, in person(NP)
in WP 18/2015

For Petitioner(s)   Mr. Bishwajit Bhattacharyya,in person(NP)
in WP 24/2015

For Petitioner(s)   Mr. Rajiv Daiya, in person(NP)
in WP 209/2015

For Respondent(s)   Mr. P.S. Narasimha, ASG
(UOI)               Ms. V. Mohana, Sr. Adv.
and for             Mrs. Devanashi P, Adv.
petitioners         Mr.Nikhil Rohatgi, Adv.
In TP 391/2015      Mr.Sameer Rohatgi, Adv.
                    Mr.D.L.Chidananda, Adv.
                    Mr.Samit Khosla, Adv.
                    Mr. B.V. Balaram Das, AOR

For SCBA            Mr. Devashish Bharuka, AOR

For State of Raj.   Mr.Shiv Mangal Sharma, AAG
                    for Ms.Ruchi Kohli, AOR

For State of     Mr.Tapesh Kr.Singh, Adv.
Jharkhand        Mr.Mohd.Waquas, Adv.
                    Mr.Shashank Singh, Adv.

For State of     Mr.C.D.Singh, AAG
Chhattisgarh     Mr.A.P.Mayee, Adv.
                    Mr. Apoorv Kurup, Adv.
                    Mr. Rohit Rathi, Adv.
                    Mr. A. Selvin Raja, Adv.

In I.A.No.7/15      Mr.Arvind P.Datar, Sr.Adv.
In WP(C)13/15    Mr. Gautam Narayan, Adv.

For State of     Mr.Sapam Biswajit Meitei, Adv.
Manipur             Mr.Ashok Kumar Singh, Adv.

For State of     Mr.Sanjay Kr.Visen, AOR
Haryana

For State of MP  Mr. Mishra Saurabh, AOR

For     State      of      H.P.        Mr.Suryanarayana      Singh,      AAG
          Ms.Pragati Neekhra, Adv.

For Govt. of     Mr.V.G.Pragasam, AOR
Puducherry
For State of U.P.   Mr. Gaurav Bhatia, AAG
                    Mr.Utkarsh Jaiswal, Adv.
                    Mr. Som Raj Choudhary, Adv.
                    for Mr.Abhisht Kumar, AOR

for BCI             Mr. Manan Kumar Mishra, Sr. Adv.
                    Ms. Anjul Dwivedi, Adv.

For Andaman &    Mr.K.V.Jagdishvaran, Adv.
Nicobar Admn.    Mrs.G.Indira, AOR

For State of     Ms.Hemantika Wahi, AOR
Gujarat

For State of     Mr.Jagjit Singh Chhabra, Adv.
Punjab              Mr.Gaurav Yadava, Adv.
                    for Mr. Kuldip Singh, AOR

For State of     Mr.M.Yogesh Kanna, AOR
Tamil Nadu          Mr. Jayant Patel, Adv.

For State of     Mr.Ritu Raj Biswas, Adv.
Tripura             Mr. Shreyas Jain, Adv.
                    for Mr.Gopal Singh, AOR

For State of     Mr.Nishant R Kanteshwarkar, AOR
Maharashtra

For State of     Ms.Rachna Srivastava, AOR
Uttarakhand

For State of     Ms.Aruna Mathur, Adv.
Sikkim           Mr.Avneesh Arputham, Adv.
                    Ms.Anuradha Arputham, Adv.
                    Mr.Yusuf, Adv.
                    Mr. Shobhit Nanda, Adv.

For State of     Mrs.K.Enatoli Sema, Adv.
Nagaland            Mr.Edward Belho, Adv.
                    Mr.Amit Kumar Singh, Adv.

For State of     Mr. Shreyas Jain, Adv.
Bihar               for Mr. Gopal Singh, AOR

                    Mr. Gautam Talukdar, AOR

                    Mr. Varun Thakur, Adv.
                    for Mr. Varinder Kr. Sharma, AOR

                    Mr. Subo Sankar Mishra, AOR
                    Mr. Niranjan Sahu, Adv.


       Hon'ble Mr. Justice Jagdish Singh Khehar pronounced the Order of  the
Bench comprising His Lordship, Hon'ble Mr. Justice  J. Chelameswar,  Hon'ble
Mr. Justice Madan B. Lokur, Hon'ble Mr. Justice Kurian  Joseph  and  Hon'ble
Mr. Justice Adarsh Kumar Goel.
       For the reasons mentioned in the Reportable Order,  which  is  placed
on the file, the Court while  disposing  of  all  the  matters  collectively
heard, directed as under:
9.     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 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.
10.    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.

11.    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.

(Renuka Sadana)                              (Parveen Kr. Chawla)
 Court Master                                 AR-cum-PS
-----------------------
[1]  Supreme  Court  Advocates-on-Record  Association  v.  Union  of  India,
(1993) 4 SCC 441
[2]  Special Reference No. 1 of 1998, (1998) 7 SCC 739

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