New Delhi : Apparently reflecting the unease over the striking down of the NJAC law, the BJP government on Thursday bluntly told the Supreme Court that it will not formulate the draft Memorandum of Procedure 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 the government and his inability to do so. “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, which 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 judgments, 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 his 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 on Wednesday agreed to prepare the draft MoP. “You yourself had yesterday said you will draft a proposal, then 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. 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”. Justice Khehar, speaking for the bench, said that as far as the MoP was concerned, the exercise was aimed for enhancing 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. –
