The appointment of the CJI and judges of the supreme court is governed by a Memorandum of Procedure (MoP), which was issued in 1947 and updated in 1999. In 2015, the court instructed the Centre to develop a new MoP to enhance the transparency of the collegium’s activities. This MoP was to be prepared by the Government of India in consultation with the collegium. MoP was to include following-

• Eligibility criteria: The MoP may indicate the eligibility criteria such as the minimum age, credentials of the person, etc. for the guidance of the collegium.
• Transparency in appointment process: The eligibility criteria and the procedures outlined in the MoP for appointing judges are to be made accessible on the websites of the Supreme Court and the Department of Justice of the Government of India.
• Secretariat: To facilitate better management of the judicial appointment system, the MoP can include the creation of a secretariat for each high court and the Supreme Court, detailing its functions, duties, and responsibilities.
• Complaints: The MoP may provide for an appropriate mechanism and procedure for dealing with complaints against anyone who is being considered for appointment as a judge in the higher judiciary.

It should be noted that the MoP as suggested by the SC in 2015 is yet to be fully functional due to lack of consensus between the judiciary and the government.

There is a need to evolve a consensus between the judiciary and the executive in matters of appointing judges in the higher judiciary. The independence of the judiciary and the accountability of the collegium system needs to be balanced in order to ensure transparency in the appointments of judges.

National Judicial Appointments Commission and Evolution of the Memorandum of Procedure

The parliament amended the constitution via  Constitution (99th amendment) Act, 2015 to establish the NJAC. The NJAC Act of 2015 was also enacted by Parliament to oversee the operations of the NJAC. The NJAC was a constitutional body proposed to replace the long-standing Collegium system of appointing judges. However, the SC in 2015 nullified the 99th constitutional amendment by declaring it as unconstitutional. 

• • Composition of NJAC: The NJAC was intended to consist of six members: 
    • The Chief Justice of India, serving as the ex-officio Chairperson. 
    • The two senior-most judges of the Supreme Court, appearing as ex-officio members. 
    • The Union Minister of Law and Justice, who serves as an ex-officio member. 
    • Two distinguished individuals from civil society, nominated by a committee that includes the Chief Justice of India, the Prime Minister of India, and the Leader of Opposition in the Lok Sabha; one of these individuals must be selected from SC/ST/OBC/minorities or women. These individuals were to be nominated for a three-year term, with no possibility of re-nomination. 
  • Procedure: The NJAC Act defined the procedures for appointing judges. The Chief Justices of India and the high courts would be recommended by the NJAC based on seniority, while judges of the SC and HC would be recommended based on ability, merit, and “other criteria specified in the regulations.” Additionally, the Act allowed any two members of the NJAC to veto a recommendation if they were in disagreement. 

• Why was NJAC declared unconstitutional?

• • Manner of selection of two eminent persons: There was a possibility wherein the non-judicial members of the committee could overrule the wishes of the Chief Justice of India, the sole judicial representative in the selection committee. 
  • Independence of Judiciary: Any two members of the NJAC could veto the proposals of the judicial members, thus raising the case of interference in the judiciary by non-judicial members. Giving so much power to the executive might have led to a culture of ‘reciprocity‘ between the two organs of democracy which are ultimately supposed to function independently.

Appointment of Ad-Hoc Judges and the Role of Memorandum of Procedure

• Constitutional provision: The constitution under article 127 provides for appointment of ad-hoc judges in the supreme court when there is an absence of quorum required to hold or continue any session of the supreme court.
• High court judge:  A judge of the high court who is duly qualified to be appointed as the judge of the supreme court can be appointed as ad-hoc judge in the SC by the CJI. 
• Prior consent: The CJI needs prior consent of the President before making such an appointment. 
• Consultation with Chief Justice of HC: Also the chief justice of the concerned high court must be consulted by the CJI before making such an appointment.

Attendance of Retired judges at SC Sittings

• Constitutional provision: According to Article 128, the Chief Justice of India may, with the prior consent of the President, request any individual:
  • who has served as a Judge of the Supreme Court or 
  • who has served as a Judge of a High Court and meets the qualifications for appointment as a Judge of the Supreme Court, to sit and act in that capacity. 
• Consent of concerned person: The person, who is being so appointed, must give their consent to the CJI’ request.
• Allowances and Jurisdiction: Such an individual is entitled to allowances determined by the President and possesses all jurisdiction, powers, and privileges. However, they are not considered a Judge of the Supreme Court in any other respect.