Can't devise draft MoP for judicial vetting, Centre to SC

Apparently reflecting the unease over the striking down of the NJAC law, government today bluntly told the Supreme Court that it will not formulate the draft Memorandum of Procedure (MoP) for the revived collegium system "for vetting by judiciary and discussion".

After a day-long hearing on suggestions to improve the collegium system of appointments for higher judiciary, the 5-judge  bench reserved its order making it clear that the "process of appointment of judges through the collegium system shall not be put on hold."

A day after being told by the apex court to formulate the draft MoP, Attorney General Mukul Rohatgi, at the outset, expressed government's and his inability in doing it.

"It is not possible to give draft MoP for vetting by judiciary," he told the five-judge Constitution bench headed by Justice J S Khehar took up the matter for hearing.

Rohatgi also made it clear to the Bench that preparation of MoP is "an executive function" to be done in consultation with the Chief Justice of India and the court need not burden itself with details.

"The Supreme Court need not vet the MoP or involve itself in making it. It is government's duty like the execution of a decree. It is not possible for the government to devise a draft MoP for judicial scrutiny and discussion.

"It is an unnecessary burden on this court. We cannot submit any draft for judicial discussion. Either, we decide or you decide. There is no procedure of draft MoP in the Constitution. We can't issue it," Rohatgi told the bench headed by Justice J S Khehar.

Referring to the practice of government executing the judgements, the Attorney General  suggested that the bench pass directions which would be complied with by the executive in consultation with the CJI.

As Rohatgi expressed inability in formulating the draft MoP, the bench, also comprising Justices J Chelameswar, M B Lokur, Kurian Joseph and A K Goel asked him as to why he had yesterday agreed to prepare the draft MoP.

"Why this change of stand today? You yourself had yesterday said you will draft a proposal and why now a change of stance?" the bench asked.

"The idea had not come from us. Your lordships had, in fact, suggested this before dispersing yesterday to have a discussion on what kind of changes were permissible. I obviously had to take instructions and this is the instruction from the government which I am conveying," Rohatgi said.

He also expressed apprehensions as to whether the instant exercise would lead to "supplementing or supplanting" the earlier framework of the collegium system, which had come into being by virtue of a 9-judge bench verdict, by a bench of smaller strength.

The bench replied, "you as an officer of the court had agreed to our suggestion and that's why we proceeded on the presumption and assumption".

"It is not possible for us to submit a draft for judicial discussion. Either, we ourselves do it or your lordship may pronounce a judgement on the formation of a secretariat for collegiums, fix appointment criteria and decide on how to deal with the complaints and we shall implement it or follow it . If the whole thing is finalised by the government the role of chief justice is finished," Rohatgi said.

The top law officer further said,"you can only supplement and not supplant while fixing the criteria for the appointment of judges and all other aspects.

"If you radically change things decided by a nine-judge bench then the strength of the present bench comes into question. I feel it can only be done by a nine-judge bench," he said.

Justice Khehar, speaking for the bench, said that as far as this MoP is concerned, the whole exercise is aimed for our understanding and "we make it clear that we would be supplementing and not supplanting".

"We want to make the system better. What direction we pass will depend on our understanding. There is a lot of substance in what are you are saying. Let us assure you that we have been thinking over what you said. We are not in great rush," the bench said.

The apex court gave its green signal for fresh judicial appointments by the Collegium   at the end of the hearing on the plethora of suggestions received by it running into 11,000 pages from all quarters of the society.

During the hearing on suggestions, senior advocate Rajeev Dhawan said that setting up of an advisory body to advise the Collegium in appointment of judges to the high courts was unnecessary.

"This court is not creating a body like UPSC. This is not a service law that is being prepared. We must be aware of parameters of reference. This advisory body also consists of eminent jurists. We all know Mr Nariman is one such. Am I not qualified to be called an eminent jurist, I am a very eminent jurist," Dhawan said adding that advisory body body has no role to play.

A lot of lawyers today gave suggestions ranging from quota for OBC, SC and ST and minorities on the ground that if other sectors are open for them then the judiciary is not "sacrosanct".