Having trashed the NDA government's National Judicial Appointments Commission (NJAC) law last month, the Supreme Court lobbed the ball back into Centre's court by accepting an offer made by Attorney General Mukul Rohatgi on Wednesday to prepare a draft memorandum replacing the 1999 one laying down the procedure to be followed while appointing judges to the Supreme Court and the High Courts.
The five-judge Constitution Bench led by Justice J.S. Khehar gave Mr. Rohatgi a broad outline of what they expect from the draft memorandum, including the establishment of an independent secretariat to help the Collegium.
Another suggestion was to have the government and the judiciary equally share the burden of evaluation of complaints received against shortlisted judicial candidates.
The Bench suggested that complaints regarding the professional performance of the candidates as judges or lawyers will be evaluated by the judiciary, while the government will probe charges against candidates' integrity.
Justice Khehar explained that a secretariat would bolster efforts towards an “open-ended selection process.”
"We will mine our minds together," Justice Khehar told the top government law officer.
These suggestions from the Bench was gleaned from over 15,000 pages of views which poured in from the public and legal communities across the country on ways to reform the opaque Collegium system. The Bench undertook to reform the 21-year-old Collegium system, which was restored after it struck down the NJAC.
But the Constitution Bench's move to accept Mr. Rohatgi's offer to prepare a draft memorandum evoked mixed both positive and negative responses from top legal minds present in the courtroom.
Senior advocate Gopal Subramanium protested that asking the government to draw up a memorandum, even a draft one at that, detailing the procedure to appoint judges to the highest courts would open the door for the Executive to interfere with judicial independence. He said drawing up a memorandum was nothing short of an Executive action.
“You should have politely declined his (AG's) offer,” Mr. Subramanium said.
“If we can strike down their NJAC, you think we cannot strike down a mere clause they can draw up in a draft memorandum? This is only a draft. We will finally decide. You are taking this is a fait accompli,” Justice Khehar countered.
Senior advocate Rajeev Dhawan intervened to suggest that the court ask Attorney General whether his offer was made in his capacity as an “officer of this court or an officer of the government”.
“Government may want to keep a distance now... it is unlikely, but there it is,” Mr. Dhawan said.
However, senior advocate Fali Nariman commended the Bench's efforts to usher in transparency.
Mr. Nariman submitted that implementation of the court's suggestions for a secretariat, create a database of suitable judicial candidates and widen the pool of judicial talent would surely ensure end the criticism against the Collegium.
The court also allayed Mr. Rohatgi's doubts whether a five-judge bench could tinker with the Memorandum of Procedure framed by the government in 1999 on the basis of a nine-judge bench judgment in the Third Judges case.
“We will keep it in mind. We feel it is too early now to give our entire minds,” Justice Khehar responded to Mr. Rohatgi.