What the 2015 order directed
After the National Judicial Appointments Commission was struck down, appointments reverted to the collegium system for the higher judiciary. The Constitution Bench did not write the new document itself. It asked the government to finalise the memorandum in consultation with the Chief Justice of India.
That consultation was not a single meeting. The Court had pointed to areas for repair. Eligibility would say who can be considered and on what record. Transparency would say what is recorded and communicated. A secretariat would give the process staff and memory. A complaints mechanism would say how adverse material is received, checked and dealt with before clearance.
Eleven years on, the petition says the work is still open. The government has not notified a final version. The Court has not recorded closure. That gap forms the Article 32 claim, framed as failure to carry out the 2015 direction.
Finalisation has always turned on two roles. The executive checks intelligence inputs, verifies antecedents and issues warrants of appointment. Primacy in choice of names rests with the judiciary under the governing judgments. The memorandum was meant to record how the two work together without blurring who decides what.
Collegium transparency and RTI demand
The sharpest contest is over bringing Collegium decisions under the Right to Information Act, 2005. At present, Collegium resolutions recording names recommended or reiterated are published as brief statements. Underlying deliberations, views exchanged and inputs considered are not published.
The petition says disclosure would build public confidence. Citizens, on this argument, should know the criteria used, the material weighed and the reasons for selection or rejection. Published reasons, supporters say, would curb speculation when names are delayed, returned or dropped, and force a fuller record.
The opposite view, heard in earlier debates, warns of costs to candour and privacy. Collegium talk involves assessments of work, reputation and at times unverified complaints. Judges may speak less freely about a colleague or a member of the Bar if each line can be published. Candidates considered but not picked may carry lasting harm if adverse remarks surface without a finding.
Disclosure law already provides filters. The Right to Information Act exempts matter linked to sovereignty, investigation, personal privacy and fiduciary relations, subject to a public-interest override. Any direction here would need line-drawing by the Court — what counts as a decision, what counts as deliberation, and what must stay protected to keep assessment honest while letting the public judge the process.
Same word, different legal tracks
The word memorandum misleads because it appears in unrelated fields. This case concerns only appointments to the higher judiciary. It has nothing to do with the memorandum of office procedure sometimes used inside government departments to route files and fix responsibility for noting and drafting.
Company law is also separate. The petition does not concern the procedure for alteration of memorandum of association under the Companies Act. It is equally distinct from the procedure for alteration of object clause of memorandum of association that company lawyers follow before the Registrar of Companies, with board and shareholder approvals and statutory filing.
The shared word creates no shared test. One track deals with corporate charter amendments. The other deals with constitutional appointments. Only the second is before the Court here, and searches for forms and filings should not mix the two.
What recusal means for hearing
A recusal signals no view on the merits. It takes the judge off the case. Reasons are often unstated, and none were stated beyond the fact itself. The practice guards confidence in the hearing by cutting off later claims of bias or prior association.
Here the result is administrative. The petition must be listed again for hearing without the recused judge, a step that runs through the Chief Justice of India on the judicial side for allocation to another bench. No direction on eligibility norms, secretariat, complaints handling or disclosure has been issued.
Attention is natural because many judges have taken part in Collegium discussion or administration at some stage. Law does not treat every administrative link as a bar. Each judge decides whether to sit. Justice P.S. Narasimha decided not to sit, and the case moves on that basis.
Delay remains the live point. Courts grant mandamus slowly for a consultative document shared between two constitutional functionaries. The petitioner must show why Article 32 is the route, what exact direction is now sought, and how the Court can frame it without writing executive detail. The Union must explain where the draft stands, what consultation with the Chief Justice of India has occurred, and what still blocks notification.
Questions court will face next
Listing will start with the shape of relief. A general direction to finalise soon is one course. A structured order with heads and timelines is another. The 2015 order had listed heads for improvement. The new plea asks the Court to give them binding form.
Eligibility will come first. The bench must weigh whether to prescribe professional standards, age zones, weight for Bar and service candidates and diversity considerations, or leave them to the consultative draft. Any judicial prescription will bear on High Court representation and Supreme Court selection for years.
A permanent secretariat raises staffing, funding and control. A body that only keeps minutes differs from one that calls for reports, screens names and grades candidates. The petition wants continuity. The Court must decide how much structure to require while leaving appointment responsibility where the Constitution places it.
Complaints handling will be the most sensitive. A channel for complaints can stop unsuitable appointments. It can also stall names through anonymous allegations. Design must answer who can complain, what proof must come with it, how the candidate is heard, and how unverified material is kept out. Without those checks, a reform meant to filter can become a veto in other hands.
The RTI prayer needs separate treatment under the text of the Right to Information Act, 2005, its exemptions, and earlier rulings on disclosure by constitutional offices. The bench must examine whether Collegium records are held by a public authority under the Act and what severance is possible between stated reasons and deliberative notes. A middle path of published reasons with protected workings is possible, but it must be spelled out.
Parties will file fresh notes on consultation since 2015 at the next listing. The bench will then decide whether to call for affidavits, set a timetable for placing the draft before the Chief Justice of India, or hear the RTI question as a distinct legal issue.
