The central government on Thursday expressed its inability before the Supreme Court in formulating the draft Memorandum of Procedure (MOP) for appointment of judges in the higher judiciary.
Attorney general Mukul Rohatgi, who was on Wednesday asked by the five-judges constitution bench to prepare the draft MoP, said “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 can’t issue it.”
Rohatgi rather asked the bench, headed by justice J S Khehar, to issue directions for making the collegium system better and leave the task of drafting MoP.
“There cannot be a continued mandamus. It has to end somewhere. Some finality has to be achieved,” Rohatgi said.
The bench, during the hearing, made it clear that it does not want to supplant but only supplement to the framework devised in pursuance to the nine judges bench in the second and the third judges case.
The court is hearing the suggestions advanced by the government, lawyers and others for improving the collegium system of judicial appointments.
It had on Wednesday asked the Centre to formulate a draft MoP, based on these suggestions, for appointments of judges to higher judiciary to be made by collegium.
The apex court in an unprecedented move had invited suggestions from all those who desired to improve the collegium system.
A slew of suggestions, including provision for a well-defined criteria for prospective judges, have been mooted before the Supreme Court by various lawyers for improving the revived collegium system of appointments in higher judiciary.
The government suggested a three-step procedure, to be made known publicly, of appointment of judges to the Supreme Court and high courts that comprises the recommendation and appointment through a consultative participatory exercise. It has also suggested that “the minutes of the collegium meeting must be subject to RTI Act. The candidates must disclose membership of any political party. Rules/guidelines must be prescribed for selection of candidates to ensure transparency.”
“There must be well-defined criteria that should be established by the Supreme Court for appointments to the High Courts and to the Supreme Court. The criteria must refer to age, merit, seniority, integrity, income criteria, academic qualification,” one of the suggestions collated by senior lawyer Arvind Datar and additional solicitor general Pinky Anand said.