In the case of SCORA v. Union of India, decided on 16.12.2015, the Supreme Court laid down certain guidelines to be observed by the Chief Justice of India and the Government before finalising the Memorandum of Procedure. The Bench comprising of Justice Jagdish Singh Khehar, Justice Chelameswar, Justice Madan B. Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel, ordered the government to finalise the Memorandum of Procedure in consultation with the Chief Justice of India. The decision of the Chief Justice of India shall be based on the unanimous decision of the collegium comprising of the four senior most puisne judges of the Supreme Court.The Supreme Court further held that the Chief Justice of India and the Government shall take into consideration following aspects before finalising the Memorandum of Procedure:
- Eligibility Criteria
It was held that 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
In order to make the appointment process more transparent, the Bench noted, ‘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 Bench also observed that 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.’
- Setting up of Secretariat for the management of selection process
The bench said that for better management of the system, the Memorandum of Procedure may provide for establishment of Secretariat for the Apex Court and each of the High Courts and additionally, prescribe their functions, duties and responsibilities.
- Complaints against candidates
The Court ordered that the Memorandum of Procedure should contain sufficient procedure to deal with the complaints against the persons who are going to be appointed.
- Miscellaneous Issues
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.
