Attorney General pulls out of drafting procedure to appoint judges

Mukul Rohatgi suggested to a five-judge bench to direct the Centre, if need be, through a judgment to prepare a memorandum of procedure.

November 19, 2015 12:24 pm | Updated December 04, 2021 11:33 pm IST - NEW DELHI

NEW DELHI, 18/02/2014: Supreme Court of India in New Delhi. Photo: V. Sudershan

NEW DELHI, 18/02/2014: Supreme Court of India in New Delhi. Photo: V. Sudershan

Sparking a new stand-off between the highest judiciary and the government, Attorney General Mukul Rohatgi on Thursday informed the Supreme Court that the Centre will not prepare a draft memorandum of procedure for judicial appointments and present it for judicial vetting.

Instead, Mr. Rohatgi suggested to a five-judge bench led by Justice Khehar to direct the Centre, if need be, through a judgment to prepare a memorandum of procedure in consultation with the Chief Justice of India.

But Mr. Rohatgi also made it clear to the Bench that prepration of the memorandum of procedure is anyway an Executive function done in consultation with the CJI, and this bench need not burden itself on the nitty-gritties.

When Justice A.K. Goel on the bench asked Mr. Rohatgi why he had yesterday offered to prepare the draft, the AG said he had to of course get instructions from the government.

On Wednesday, the bench had accepted Mr. Rohatgi's offer in his capacity as Attorney General, a constitutional post and topmost law officer of the Government of India, to prepare a draft memorandum and place it for debate and discussion before the bench.

The bench had even given suggestions like an independent secretariat for the restored Collegium system, creation of database and widening the pool of judicial candidates to usher in transparency into the much-smeared Collegium style of functioning.

However, the bench's acceptance of Mr. Rohatgi fell into troubled waters when senior advocates like Gopal Subramanium and Rajeev Dhawan expressed apprehensions.

While Mr. Subramanium protested in his submissions that the Bench should have "politely declined" Mr. Rohatgi, Mr. Dhawan told the Bench that it should ask Mr. Rohatgi whether he offered to prepare the draft memorandum in his capacity as an "officer of the court or an officer of the government".

To this, Justice Khehar had agreed that "it can be done".

These objections were raised during the post-lunch session on Wednesday when Mr. Rohatgi was not present in the courtroom.

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