The government on Thursday declined to come on board with the Supreme Court in drafting a new procedure to appoint judges after the National Judicial Appointments Commission (NJAC) was quashed, following which the court gave its go-ahead to the existing Collegium to make fresh appointments.
In the last nine months, no new appointments of judges have been made in high courts or in the apex court owing to pendency of the matter.
In a day of dramatic events, the government first backtracked on submitting a draft procedure to the Constitution Bench on a new mechanism for judges’ appointments. The day-long hearing ended with the Bench stating that the existing Collegium would continue to appoint judges without waiting for its final order.
The hearing began with Attorney General Mukul Rohatgi telling the Bench that the government was not agreeable to preparing and submitting a draft memorandum of procedure (MoP) to the Bench for its vetting.
“It is not possible for the government to devise a draft (MoP) for judicial discussion. It is an unnecessary burden on this court. There is no procedure of draft MoP in the Constitution. We cannot issue it,” he said.
The AG said the Bench would have to issue a judicial directive to the government for preparing an MoP, which is anyway an executive function done in consultation with the Chief Justice of India.
“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 MoP to the executive. There cannot be a continued mandamus. It has to end somewhere. Some finality has to be achieved,” said Rohatgi.
Asked by the Bench why he had agreed to prepare a draft MoP yesterday, Rohatgi said he was now expressing his inability after instructions from the government, making it clear that the government does not want to be seen as supporting the court’s judgment on improving the Collegium after quashing the NJAC.
The government’s stand changed the course of the hearing and the bench started examining the suggestions received for improving the Collegium system. It heard the lawyers for the rest of the day and reserved its verdict on directives that may be passed in its final order.
The court then clarified that appointments would not be put on hold. “It (appointments) shall not be put on hold. It will continue… needless to say, the process of appointment of judges by the Collegium process as in vogue may continue,” said the Bench.