SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION Vs UNION OF INDIA
Bench: JAGDISH SINGH KHEHAR,J. CHELAMESWAR,MADAN B. LOKUR,KURIAN JOSEPH,ADARSH KUMAR GOEL
Case number: W.P.(C) No.-000013-000013 / 2015
Diary number: 439 / 2015
Advocates: SURYA KANT Vs
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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
W.P. (C) No. 13 of 2015 etc. etc. Page 3 of 16
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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
W.P. (C) No. 13 of 2015 etc. etc. Page 5 of 16
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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
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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:
W.P. (C) No. 13 of 2015 etc. etc. Page 14 of 16
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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
W.P. (C) No. 13 of 2015 etc. etc. Page 15 of 16
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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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