The Supreme Court on Thursday revived the process of judicial appointments after a five-judge Bench reserved its orders on the suggestions to reform the collegium process and clarified the present collegium ‘shall not be put on hold’ awaiting its decision.
Earlier in the day, the Centre told the apex court that its proposal inviting a draft Memorandum of Procedure (MoP) from the Attorney-General (A-G) was impractical. Appearing for the Centre, A-G Mukul Rohatgi submitted there was no procedure to prepare a “draft MoP” particularly when it was to be finally scrutinised by the court. Any MoP is drafted by the Government in consultation with Chief Justice of India (CJI), which gets vetted even by the Prime Minister, Rohatgi said.
Rohatgi also rejected a suggestion by the court that he frame the draft MoP in his personal capacity as an officer of the court, saying “Under my Constitutional duty I have to deal with the Government daily and without their agreement I cannot give a MoP, particularly when what I say will bind them in the future.”
The Bench of Justices JS Khehar, J Chelameswar, Madan B lokur, Kurian Joseph and Adarsh K Goel told the A-G that the Centre was otherwise also free to change the MoP in the light of suggestions. It said, “We had said this on Wednesday because you suggested it. It is your MoP. Either we leave it entirely to you or we decide it on our own.”
Flagging up another difficulty in embarking on such an exercise, he asked, “What if the CJI does not agree to these suggestions, since any change in MoP is to be carried out in consultation with the CJI.”
On this the Bench said, “The CJI may or may not agree. That is between you (Centre) and the CJI. But you are assuming there will be a judicial verdict from us. It may be in the form of suggestions that the Centre in its wisdom can incorporate.”
Amid the debate between the A-G and the Bench, the Bar Council of India, senior advocates and lawyers suggested how to bring transparency within the selection process adopted by the collegium.
Senior advocate Rajeev Dhavan said the executive should have no role in preparing the MoP as, according to him, the judiciary must set the contours of the changes needed. He was also against making changes to MoP as part of a judicial verdict as that will make it “inflexible”. Instead, he proposed it must be an internal document that could be changed from time to time.
Reserving the matter for orders after an extended sitting, the Bench clarified, “The process of appointment of judges by collegium process which is in vogue shall not be put on hold.”