New Delhi: The government, whose bid to replace the collegium system was thwarted recently, was on Wednesday entrusted by the Supreme Court with the task of framing a draft Memorandum of Procedure (MOP) for future appointments in higher judiciary after considering all suggestions on the issue.
The apex court's direction, entrusting the major role to the Centre, however faced stiff opposition from senior advocate Gopal Subramaniam who said "suggestions are welcome", but the executive cannot be allowed to draft even the draft memorandum.
He referred to the judgement, striking down the National Judicial Appointments Commission Act and 99th constitutional amendment and said the prime reason for his objection was the endeavour to protect judicial independence and hence, the executive cannot be allowed now to have a role.
"You (Subramaniam) are jumping the gun. They are not going to issue MOP. Everybody is seeking transparency and there are no sides. Government also intends to make it transparent and broad-based. We are just taking their inputs as it is a very important stakeholder.
"We may or may not accept their suggestions. We have struck down their NJAC. You think we can't flick out a mere clause in their draft MoP. Nobody can interfere in the process. You are just assuming that this is fait accompli," a five-judge Constitution bench headed by Justice J S Khehar said.
Subramaniam, however, kept insisting on his arguments and also referred to the second and third judges case to highlight that the Centre should be denied a role in drafting the MoP.
"There is no going back as far as second and third judges case is concerned. Independence of judiciary is very vital and must. MOP is only an executive memorandum to operationalise a judicial order. It (MOP) cannot be left to the executive. It is judiciary's exercise. MOP should only be a proposal after a final view is taken by this court.
"Primary consideration of the suggestion must lie with the Supreme Court. Suggestions may keep pouring in, I am not averse to it. However, the final call needs to be taken by this court," the senior lawyer said.
At the outset, Attorney General Mukul Rohtagi raised the issue of vacancy in High Courts and asked the bench, also comprising Justices J Chelameswar, M B Lokur, Kurian Joseph and A K Goel, to give a go ahead to appointment of judges.
Rohatgi said that nearly 40 per cent of posts were lying vacant in various high courts and this was affecting the disposal of cases.
Responding to Rohatgi's submission, the bench said it has not put any bar on the collegium.
Rohatgi, who has been asked to collate the suggestions in his capacity as a lawyer and not a law officer, also said that most of the representations harp on need for greater transparency in the appointments.
He said that government favoured a "transparent criteria" based appointment of judges at the entry level in the high courts. Over the years, merit has taken a back seat and seniority a front seat in judicial appointments, Rohatgi added.
Senior advocate Fali S Nariman also joined ranks with the AG in his submission that merit has taken a back seat and seniority was given priority.
The AG said there was a general feeling that there must be publicly-known criteria of appointment of judges in higher judiciary.
"Some eligibility rule or criteria must be laid down by this court. The question is what is the criteria which needs to be fixed. Today, the criteria is there or not, is not known to people. At the end of the day, if applications are invited, there would be nothing shrouded in mystery.
"Transparency can be achieved by inviting applications including nominations. Entry level is most critical. If that is good, judges who come here would also be good. That is from where the Supreme Court judges come from," the AG said.
"For transparency, you should have applications and nominations. These nominations must not be limited to collegium of the High Courts, it should also incorporate other judges from HCs, Bar Council of India and even the government should be allowed to make nominations," he said.
The AG also suggested that the process could be broad- based by seeking names from the governor, chief minister and the state advocate general in case of appointments to a high court and for this purpose, a full-time secretariat was required to filter the dossiers.