Memorandum of Procedure (MoP) for Judicial Appointments

The Memorandum of Procedure, or MoP, is the rule book that tells everyone, step by step, how a judge of the Supreme Court or a High Court is chosen, appointed and transferred. It is not a law passed by Parliament. It is a document framed by the Union government together with the judiciary. It fills the gap between the few lines the Constitution says about appointments and the many practical steps needed to actually appoint a judge.

Why does India need an MoP?

The Constitution says who appoints judges (the President) and whom the President must consult. It does not say who suggests the name first, which papers are needed, how long each office can take, or who checks a candidate's background. Without a written procedure, files could get stuck at any desk with no time limit. The MoP gives each step an owner and, in many cases, a deadline.

Think of it like a railway timetable: the track (the Constitution) exists, but the timetable decides which train moves when.

What does the Constitution say?

Three articles matter most:

• Article 124(2): The President appoints every Supreme Court judge after consulting such judges of the Supreme Court and High Courts as the President thinks necessary. For any judge other than the Chief Justice of India (CJI), the CJI must always be consulted.
• Article 217(1): The President appoints a High Court judge after consulting the CJI, the Governor of the state and (for judges other than the Chief Justice) the Chief Justice of that High Court.
• Article 222: The President can transfer a judge from one High Court to another after consulting the CJI.

Related provisions include Article 224 (additional and acting judges of High Courts) and Article 224A (retired judges asked to sit again as ad hoc judges in a High Court).

Where did the MoP come from?

The MoP grew out of three Supreme Court judgments, known as the Judges Cases:

• First Judges Case (S.P. Gupta v. Union of India, 1981): The court said "consultation" with the CJI does not mean "concurrence" (agreement). The government had the final word.
• Second Judges Case (Supreme Court Advocates-on-Record Association v. Union of India, 1993): The court reversed this. It said the CJI's opinion, formed with senior judges, has primacy. This created the collegium system.
• Third Judges Case (In re Special Reference No. 1 of 1998): The court said the CJI must consult a collegium of the four senior-most Supreme Court judges for Supreme Court appointments, and the two senior-most judges for High Court appointments.

Following these judgments, the Union government framed the MoP on 30 June 1999. It has separate documents for the Supreme Court and the High Courts, published by the Department of Justice in the Union Ministry of Law and Justice.

How does a High Court appointment work under the MoP?

This is the most common appointment, so learn the steps in order:

1. The Chief Justice of the High Court starts the proposal, in consultation with the two senior-most judges of that High Court. This should be done at least six months before the vacancy arises.
2. The proposal goes to the state's Chief Minister, who advises the Governor. The Governor sends the recommendation, with all papers, to the Union Law Minister within six weeks. If no views arrive in six weeks, the Law Minister may assume the state has nothing to add.
3. The Union Law Ministry adds other inputs, including a background report from the Intelligence Bureau (IB), and sends the full file to the CJI.
4. The Supreme Court collegium (for High Court judges, the CJI and the two senior-most Supreme Court judges) considers the names. It may also ask Supreme Court judges who know that High Court.
5. The CJI's recommendation goes back to the Law Minister, who places it before the Prime Minister. The Prime Minister advises the President, who signs the warrant of appointment.

How does a Supreme Court appointment work?

The CJI starts the proposal and consults the collegium of the four senior-most Supreme Court judges. The CJI also takes the views of the senior-most Supreme Court judge who comes from the candidate's High Court. The recommendation then goes to the Law Minister, the Prime Minister and finally the President.

How is the Chief Justice of India chosen?

The MoP says the senior-most judge of the Supreme Court, if considered fit to hold the office, should be appointed CJI. At the right time, the Law Minister asks the outgoing CJI to recommend a successor. The MoP gives no fixed timeline for this request. If there is doubt about the senior-most judge's fitness, other judges are consulted.

What about High Court Chief Justices and transfers?

By policy, the Chief Justice of a High Court is appointed from outside that state. For transfers under Article 222, the CJI starts the proposal and the CJI's opinion is decisive. The judge's consent is not required, but the views of the Chief Justices of both High Courts are taken.

Why is a "revised" MoP still pending?

In 2014, Parliament passed the 99th Constitutional Amendment and the NJAC Act to replace the collegium with a six-member commission. On 16 October 2015, a five-judge bench struck both down by a 4:1 majority (the Fourth Judges Case). The court kept the collegium but agreed the system needed improvement. On 16 December 2015, it asked the government to draft a new MoP in consultation with the CJI. The timeline after that:

• 22 March 2016: The government sent a draft revised MoP to the CJI.
• May and July 2016: The collegium sent back revised drafts.
• 13 March 2017: The government received the collegium's final view.
• The two sides never agreed. Reported sticking points included a clause letting the government reject a candidate on "national security" grounds, a permanent secretariat to screen candidates, and later (2023) a government proposal for a representative on a search-cum-evaluation committee.
• December 2022: At a hearing, the Supreme Court said the existing MoP is final and must be followed until any changes are agreed. The government's position has been that finalising the revised MoP is still pending.

Timelines set by the Supreme Court

Because files often stayed stuck, the Supreme Court in PLR Projects Ltd. v. Mahanadi Coalfields Ltd. (20 April 2021) laid down time limits:

• The IB should send its report within 4 to 6 weeks of the High Court collegium's recommendation.
• The Centre should send the file to the Supreme Court collegium within 8 to 12 weeks of receiving the state's views and the IB report.
• If the collegium reiterates (repeats) a name, the Centre should make the appointment within 3 to 4 weeks.

Commonly confused concepts

• MoP vs a law: The MoP is an administrative document. It is not an Act of Parliament and not part of the Constitution. The NJAC Act was a law, and it was struck down.
• MoP vs collegium: The collegium is the group of judges that selects names. The MoP is the procedure that the collegium and the government follow to move those names to appointment.
• High Court collegium vs Supreme Court collegium: A High Court collegium is that court's Chief Justice and two senior-most judges; it proposes names. The Supreme Court collegium decides on them.
• Consultation vs concurrence: "Consultation" (the word in Articles 124 and 217) means asking for views. The Second Judges Case read it to give the CJI's collegium primacy, which works almost like concurrence.
• Additional judge vs ad hoc judge: An additional judge (Article 224) is appointed for up to two years to clear arrears. An ad hoc judge in a High Court (Article 224A) is a retired judge asked to sit again.

Issues, criticism and the way forward

• Long delay: The revised MoP has been pending since 2016. Both sides blame each other for the deadlock, and appointments slow down while files move back and forth.
• Missed deadlines: The government has told Parliament that High Courts often do not start proposals six months before a vacancy. At the same time, the Centre has sometimes held names for long periods, even after reiteration.
• Transparency: Critics, including the petitioner in the present case, point out that there are no public criteria (such as judgments written, income or experience) for selecting candidates.
• Executive role: The government argues that it needs a say on matters like national security and a screening body. Supporters of the collegium say these clauses could weaken judicial independence.
• Way forward suggested by experts and committees: a clear and public selection criteria, a permanent secretariat to keep records of candidates, fixed time limits at every stage that both sides follow, and a written method for handling complaints against candidates. A parliamentary standing committee has also suggested shortening the six-week window given to states.

Concepts to Know

• Puisne judge: Any judge of a court other than its Chief Justice. "Senior-most puisne judge" means the most senior judge after the Chief Justice.
• Collegium: A small group of the senior-most judges who select names for appointment and transfer of judges.
• Intelligence Bureau (IB): India's internal intelligence agency under the Ministry of Home Affairs. In appointments, it checks a candidate's background and reputation.
• Reiteration: When the collegium sends back the same name a second time after the government returns it. Under the Second Judges Case, the government is then normally bound to appoint.
• Warrant of appointment: The formal order signed by the President that makes a person a judge.