SC nod to Collegium on appointments

The Supreme Court on Thursday gave the Chief Justice of India (CJI)-headed Collegium a go-ahead for appointment of judges in the apex court and the high courts.

However, the Centre maintained it was not in position at the moment to prepare a draft Memorandum of Procedure (MoP).

A five-judge bench presided over by Justice J S Khehar concluded its two-day-long hearing on suggestions related to improvement of the Collegium system of appointment of judges. The court reiterated that the process for appointment of judges by the collegium, also comprising four senior-most judges, will continue in terms of the procedure as “already was in vogue”.

“It is needless to mention that the process of appointment of judges by Collegium shall continue and will not be put on hold,” the bench said.

A-G clarifies stand
Attorney-General (A-G) Mukul Rohatgi, while clarifying the stand of the government, which faced a setback after invalidation of the NJAC Act, submitted before the bench that the draft MoP could be put in place only when the judicial process is over.

There has been no fresh appointment of judges for over the last nine months with the vacancy in high courts rising up to 40 per cent.

At the outset, Rohatgi submitted it was not possible for the government to prepare the draft MoP for judicial discussion.

“The role of the CJI cannot be undermined by these proceedings. This bench may issue directions for making the Collegium system better and leave the task of drafting the MoP to the executive. There cannot be a continued mandamus. It has to end somewhere. Some finality has to be achieved,” he said.

The procedure—under which appointments are made by the Collegium to the higher judiciary—was prepared in 1999 by the Centre in consultation with the CJI and this procedure had been accepted by successive Chief Justices, he said.

If the bench of five judges hearing the matter was to pass a judicial order on the draft procedure, then it would be binding on the CJI, he said.

The bench, however, said: “There is nothing wrong in preparing a draft; if there has to be some procedural changes, you can do it now.”

“If some complaint redressal system to be notified under the system, there is no bar in our judgment (of October 16),” the bench, also comprising Justices J Chelameswar, Madan B Lokur, Kurian Joseph and A K Goel, added. The A-G, on his part, said: “Don’t put me in a difficult position to prepare a draft. I can’t give up my constitutional duty...if it is to be done, let somebody else do it; otherwise it will create all sorts of problems.” To this, the bench told him that it was only on his plea that the court asked him to prepare the draft.

He replied that he clarified the position as the government does not want to been seen as supporting the court’s judgment on improving the Collegium after quashing the NJAC. The A-G told the court: “The draft can be decided by the court itself, or leave it to the CJI, collegium and the Government of India to look into it.”

Observing that the government was within its power to bring out the memorandum, the bench heard a number of lawyers for suggestions on improvement in the Collegium.
The court reserved its order with the direction that the Collegium can go ahead with appointment of judges.