Memorandum of Procedure(MoP) – UPSC Prelims

Memorandum of Procedure(MoP) is an agreement between the judiciary and the government. It contains a set of guidelines for making appointments to the Supreme Court and High Court.

Significance: The MoP is a crucial document as the Collegium system of appointing judges is a judicial innovation that is not mandated through legislation or text of the Constitution.

The MoP evolved based on three SC decisions – the First Judges Case (1981), Second Judges Case (1993), and the Third Judges Case (1998).

In 2016, the MoP re-negotiations took place following the Supreme Court’s decision to strike down the National Judicial Appointments Commission(NJAC).

However, a judicial order can overturn the negotiations as an order of the SC is the law of the land binding the government.

MoP starts with the recommendation of the High Court Collegium to the center for the appointment of other judges. The Chief Justice of the High Court(HC) heads the collegium.

Once the center receives recommendations, it asks for the opinion of state governments and the input from the Intelligence Bureau (IB).

The government then forwards the files, along with the IB inputs to the Supreme Court collegium.

If the Supreme Court collegium clears the names, the files return to the central government. It then either notifies the appointments or sends them back with objections or its views.

At this stage, the Supreme court collegium can seek additional inputs on the government’s opinion. Accordingly, it can either reject or reiterate the proposal.

If the collegium reiterates its decision, then, under the MoP, the government is bound to notify the appointments.

However, the MoP does not specify a timeframe for the central government to act on a collegium decision.

The Supreme Court of India sets a timeline for the Centre to clear names recommended by the Collegium.

The issue of judicial vacancies came up when the Supreme court was hearing a petition seeking transfer of a case from the Orissa High Court due to the lawyers’ strike there.

There are almost 40% vacancies in the High Courts. Many of the larger High Courts are working under 50% of their sanctioned strength.

Furthermore, the SC collegium has cleared several names for the appointment to various high courts. But the law ministry is yet to clear the names. Importantly, the Memorandum of Procedure(MoP) does not prescribe any time limit to make the decision for the Central Government.

The Intelligence Bureau (IB) should submit its report/ inputs within 4 to 6 weeks. Duration will start from the date of recommendation of the High Court Collegium, to the Central Government.

The Central Government shall forward the recommendations to the Supreme Court within 8 to 12 weeks. The duration would start from the receipt of views from the State Government and the report/ input from the IB.

Further, after the Supreme Court collegium clears the names for appointments, the Central Government can proceed to make the appointment immediately.

However, if the Government has any reservations on the suitability or in the public interest, It can send back the recommendations to the Supreme Court Collegium.

But if the Supreme Court Collegium, after reconsideration still reiterates the recommendation(s) unanimously, such appointment should be processed. Appointments should be made within 3 to 4 weeks.