SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION AND ANOTHERversusUNION OF INDIA

                    r2015J 14 s.c.R. 975


      SUPREME COURT ADVOCATES-ON-RECORD                         A
           ASSOCIATION AND ANOTHER
                              v.
                      UNION OF INDIA
             (Writ Petition (Civil) No. 13 of2015)              B
                    DECEMBER 16, 2015
   [JAGDISH SINGH KHEHAR, J. CHELAMESWAR,
  MADAN B. LOKUR, KURIAN JOSEPH AND ADARSH
               KUMAR GOEL, JJ.]                                 C
        Judiciary - Higher judiciary - Appointment of judges
  to the higher judiciary - Improvement in the working of the
  coflegium system - Issuance of guidelines to make the
  co/legium system of judges more transparent and
 .accountable - Government of India to finalize the existing D
  Memorandum of Procedure. (MOP) 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 coflegium comprising the four senior most puisne Judges
  of the Supreme Court - They would take into consideration E
  suggestions on the issues of eligibility criteria, transparency
  in the appointment process, Secretariat, complaints and
· other matters in the MOP.
      Supreme Court Advocates-on-Record Association
                                                                F
      v. Union of India 1993 (2) Suppl. SCR 659: (1993)
      4 SCC 441; Special Reference No. 1 of 1998
      1998 (2) Suppl. scR 400: (1998) 7 sec 739 -
      referred to.
                    Case Law Reference                          G
      1993 (2) Suppl. SCR 659      referred to.      Para 6.
      1998 (2) Suppl. SCR 400      referred to.      Para 7.


                                                                H
                             975
976         SUPREME COURT REPORTS                  (2015] 14S.C.R.


A         CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
      13of2015.
           Under Article 32 of the Constitution of India.
                                  WITH
B          W. P. (C) Nos. 23, 70, 83, 108, 124, 14, 18, 24, 209,
      309, 310, 323 and 341 of 2015 and T. P. (C) Nos. 391 and
      971 of2015.
            Mukul Rohatgi, AG, Ranjit Kumar, SG, Ms. Pinky Anand,
      ASG, Shiv Mangal Sharma, C. D. Singh, Anil Grover,
C     Suryanarayana Singh, Gaurav Bhatia, Ajay Bansal, AAGs, Fali
      S. Nariman, Anil B. Divan, R. K. P. Shankardas, K. N. Bhat,
      Sunil Gupta, Ajit Kumar Sinha, Arvind P. Datar,
      K. K. Venugopal, Subramonium Prasad, T. R.Andhyarujina,
D     Vijay Hansaria, Siddharth Luthra, Manan Kumar Mishra,
      P. P. Rao, Ram Jethmalani, Dr. Rajeev Dhawan, Gopal
      Subramanium, Jaideep Gupta, Ms. Mahalakshmi Pavani,
      S. G. Hasnain, Sr. Advs., Subhash C. Sharma, Mrs. Astha
      Deep, S. K.Anand, Surya Kant, Dinesh Kumar Garg, Santosh
      Paul, Joseph Aristotle S., Arvind Gupta, Ms. Priya Aristotle,
E     Ms. Savita Singh, M. B. Elakkumanan, Ms. Swati Singh,
      Raghav Shekhar, Prashant Bhushan, Prashant Kumar,
      Ms. Anindita Pujari, Syed Rehan, Ranvir Singh, Jitendra Kr.
      Mohapatra, A. C. Philip, Anjan Sinha, Rabin Majumder,
      V. N. Subramanian, Subhasish Bhowmick, Ms. Prachi Bajpai,
F     Sriram Parakkat, Vishnu Shankar Jain, Ankur S. Kulkarni, Nikhil
      Rohatgi, Sameer Rohatgi, D. L. Chidananda, R. K. Verma,
      Mrs. Madhvi Div;-in, Thangathurai, Ms. S. Sharma, Arghya
      Sengupta,Abhinav Mukherji, Ms. Binu Tamta, Mrs. Diksha Rai,
      Ajay Sharma, Ms. Devanshi P., Ms. Ranjeeta Rohatgi, Samit
G     Khosla, Ms. Devanshi Singh, Gurmehar Singh S., Prabal
      Bagchi, Karan Seth, Rishabh Jain, Ms. Kritika Sachdeva,
      Ms. Snidha Mehra, Ms. Somya Thakur, B. V. Balaram Das,
      Devashish Bharuka, Ms. Abhinandini Sharma, Avanish Rathi,
      (For Ms. Ruchi Kohli), Tapesh Kr. Singh, Mohd. Waquas,
H
      SUPREME COURT ADVOCATES-ON-RECORD                           977
           ASSOCIATION v. UNION OF INDIA

  Shashamk Singh, Sylona Mohapatra, A. P. Mayee, Gautam           A
  Narayan, Sapam Biswajit Meitei, Linthoingambi Thongam,
  Z. H. Isaac Haiding, Ashok Kumar Singh, Sanjay Kr. Visen,
· Mishra Saurabh, Ms. Pragati Nekhra, V. G. Pragasam, Prabu
  Ramasubramanian, Ahmad Abdi, Dr. Indra Pratap Singh,
  Ashutosh Dubey, Dr. B. K. Jauhari, Shashank Bajpai,             B
  Ms. Pumima Jauhari, Prakash Kumar Singh, Utkarsh Jaiswal,
  Gaurav Srivastava, Abhisht Kumar, Sarai Chaturvedi, Abhishek
  Kumar Singh, K. V. Jagdishvaran, Mrs. G. Indira, Ms. Vinakshi
  Kadan, (For Ms. Hemantika Wahi), Jagjit Singh Chhabra,
  Kuldip Singh, Gaurav Yadava, M. Yogesh Kanna, Ritu Raj          C
  Biswas, Gopal Singh, Ms. Varsha Poddar, Nishant
  Katneshwarkar, Arpit Rai, Ms. Rachna Srivastava,
  Ms. D. Bharthi Reddy._Aviral Saxena, Ms. Shivani Khandekar,
  Ms.Aruna Mathur, Avneesh Arputham, Ms. AnuradhaArputham,
  Yusuf, Shobhit Nanda, Mrs. K. Enatoli Serna, Edward Belho,      D
· Amit Kumar Singh, Shivam Singh, Dattaprasad Lawande,
  Puma Bhandari, S. S. Rebello, Aurobindo Gomes Pereira,
  K. C. Kaushik, Ms. Shilpi Staya Priya Satyam,
  Ms. Bhuvneshwari Pathak, J. D. Nankani, Ms.Anjana Singh,
  Ms. Sneha Kalita, Ms. Shobha, Avnish Pandey, Abhinav            E
  Hansaria, Ms. Priyanka S. Mathur, Ms. Sunita Rao, Dr. Ritu
  Bhardwaj, Ms.Anjali Dwivedi,A. D. N. Rao,Annam Venkatesh,
  Sudipto Sircar, Ms~ Neelam Jain, Ms. Vaishali P., Ms. Ankita
  Chadha, Parijat Sinha, Joydeep Mazumdar, Kaleeswaram
  Raj, Prasanth P.,Ms. Lala Krishnamurti, Ms. Vagisha Kochar,     F
  P. R, Mala, Gautam Talukdar, Naik H. K., Prateek Chadha,
  Rudra Pratap Singh, Dr. Surat Singh, Sudhanshu Palo,
  Ms. Shobha, S. S. Rawat, Ajay Kumar Singh, (For M. S. Mahra,
 Ajay Prapa Sharma, K. S. Mahadevan, Krishna Kumar R. S.,
  K. K. L. Gautam, (For Rajesh Kumar), Ms. Sneha Kalita,          G
  Ms. Prerna Kumari, Arun Monga, (For Tushar Bakshi, Virag
 Gupta, Varun Thakur, (ForV. K. Sharma), DeepakA. Masih,
 Ms. Manreet Kaur, (ForV. K. Sharma), (ForR. N. Keshwani),
 R. P. Luthra, S. S. Nehra, Prabhash Yadav, Saurabh Yadav,
 Chand Kiran, (For P. I. Jose), Sanpreet Singh Ajmani,            H
978         SUPREME COURT REPORTS.                 [2015] 14 S.C.R.


A     (Col.) Ved Prakash, A. K. De, Ms. Indira Unninayar, Ashwani
      Upadhyay, A. Subba Rao, R. Krishnamurthy, Advs. for the
      appearing parties.
           Mathews J. Nedumpara, P. M. Duraiswamy Manohar Lal
      Sharma, R. K. Kapoor, Bishwajit Bhattacharyya, Rajiv Daiya,
B     Ashish Dixit, (Petioner-in-person).
           The following Order of the Court was passed:
                                ORDER
             1. The adjudication on the merits of the controversy,
C     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
0     system". For the above purpose, hearing was fixed for (and
      commenced on) 3ro 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
E     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.
 F
         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
G 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
H Anand, Additional Solicitor General, and on the unanimous
     SUPREME COURT ADVOCATES-ON-RECORD                            979
          ASSOCIATION v. UNION OF INDIA

endorsement of all the learned counsel representing the           A
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.                            B
     · 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 C
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 D
     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.      E
     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    F
     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             G
     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       H
980         SUPREME COURT REPORTS                    [2015] 14 S.C.R.


A           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
 B         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 Departm'ent of
           Justice, Ministry of Law & Justice, New Delhi.
           Suggestions received by 17.00 hours on 13.11.2015 shall
c          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
D          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
E
           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
 F    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
G     suggestions placed before us was in the nature of a summary
      p~epared 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".
 H
         SUPREME COURT ADVOCATES-ON-RECORD                                  981
              ASSOCIATION v. UNION OF INDIA

Only then would we be in a position to sponsor their introduction           A
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                  8
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            C
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 3Q'h June,                   D
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 4 78 of the Second Judges case1:
                                                                     E
        "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 fun9(ionaries
         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 G
        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
1   Supreme CourtAdvocates-on-RecordAssociaijon v. Union of India, (1993)
4SCC441                                                                     H
     982         SUPREME COURT REPORTS                   [2015) 14 S.C.R.


     A          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 puroose ..... "
     B                                               (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.
     C        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
      D 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
      E 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
      F 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, thatthe introduction of the above
        changes referred to in the preceding paragraph, are broadly
      G 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.
      H    'Special Reference No. 1of1998, (1998) 7 SCC 739



.•
      SUPREME COURT ADVOCATES-ON-RECORD                             983
           ASSOCIATION v. UNION OF INDIA

        9. During the course of hearing, we were also informed A
  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, B
  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 C
  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 D
 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
                                                                    E
       The Memorandum of Procedure may indicate the
 eligibility criteria, such as the minimum age, forthe guidance
 of the collegiLim (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        F
 and the Government of India (as the case may be) from time
 to time.
      Transparency in the appointment process

       The eligdibility fcpriteriadandfthehproced~re as deftailed in G.
 th e Memoran um o roce ure or t e appointment o 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              H
984          SUPREME COURT REPORTS                (2015] 14 S.C.R.


A     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   ·
B
           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,
c     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
0
      appointment as a Judge.
            Miscellaneous
            The Memorandum of Procedure may provide for any
      other matter considered appropriate for ensuring transparency
E     and accountability including interaction with the
      recommendee(s) by the collegium of the Supreme Court,
      without sacrificing the confidentiality of the appointment
      process.
 F         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.
G           12. In view of the above, all matters having been
      collectively heard, are disposed of.


      Nidhi Jain                                   Matters disposed of.