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REPORTABLE

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  

W.P. (C) No. 13 of 2015 etc. etc.     Page 1 of 16

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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  

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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  

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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  

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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:

“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  

1 Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441

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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 case2 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

2 Special Reference No. 1 of 1998, (1998) 7 SCC 739

W.P. (C) No. 13 of 2015 etc. etc.     Page 6 of 16

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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  

W.P. (C) No. 13 of 2015 etc. etc.     Page 7 of 16

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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.  

W.P. (C) No. 13 of 2015 etc. etc.     Page 8 of 16

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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

W.P. (C) No. 13 of 2015 etc. etc.     Page 9 of 16

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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.

W.P. (C) No. 13 of 2015 etc. etc.     Page 10 of 16

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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.

W.P. (C) No. 13 of 2015 etc. etc.     Page 11 of 16

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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.

W.P. (C) No. 13 of 2015 etc. etc.     Page 12 of 16

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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.

W.P. (C) No. 13 of 2015 etc. etc.     Page 13 of 16

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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:

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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  

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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    

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