New Delhi: The Supreme Court on Thursday reserved its order after taking final suggestions on how to improve the collegium system in which a small group of judges make appointments to the higher judiciary.
“Needless to say, in the meanwhile, the process of appointment of judges through the collegium system will continue and shall not be put on hold," a Supreme Court bench said.
The five-judge bench, on 16 October, struck down a constitutional amendment which sought to introduce a six-member body called the National Judicial Appointments Commission to recommend candidates for the higher judiciary. The court, however, said the existing collegium system needed to be improved and sought suggestions from senior lawyers, lawyer organisations and the general public.
The bench comprising justices J.S. Khehar, J. Chelameswar, Madan B. Lokur, Kurian Joseph and A.K. Goel heard suggestions from various stakeholders including the bar associations of various states, women’s bar associations and individual lawyers, among others.
Key suggestions also were made by senior lawyers Fali. S Nariman, K.K. Venugopal and T. Andhyarujina.
Senior counsel Mahalakshmi Pavani, representing the Supreme Court Women Lawyers Association pointed to the lack of gender parity in the appointment of judges to the high courts and apex court. “It must be made compulsory to have a certain number of women judges in courts and that will go a long way in ensuring sensitivity."
The apex court has had only five female judges in the past; R. Banumathi is its only woman judge now. There are 28 judges in the apex court; the total strength 31.
On 5 November, the bench asked lawyer Arvind Datar and additional solicitor general Pinky Anand to collate the suggestions sent to the court, identifying four areas (including transparency) it said needed discussion in order to improve the collegium system.
On Wednesday, the bench asked attorney general Mukul Rohatgi to frame and submit a draft memorandum of procedure (MoP) for judicial appointments. Rohatgi had argued that the court couldn’t give directions on what the procedure would be, as it was an executive function.
On Thursday, Rohatgi told the court that “it was not possible" for him or the government to place a copy of a draft memorandum of procedure, deviating from his earlier stand.
The MoP, a document framed by the executive, lays down the process of how judicial appointments to the Supreme Court and high courts take place. “The memorandum is an executive document for functionaries in the government on how to work out (the appointment process)...It is not possible for us to give a draft for judicial vetting. Don’t get involved with the memorandum of procedure, is my submission. It (the court) was never involved. I can’t go against my constitutional duty," Rohatgi told the five-judge bench. “It is an unnecessary burden on this court. The role of the chief justice of India will be finished."
The CJI is consulted in framing of the MoP and the draft memorandum was vetted by the prime minister and thus, could not be placed before the court after that, he added.
“Earlier judgments had directions (on how the process of appointments would be done)", justice Khehar said.
Rohatgi asked the court to give a judgment directing the centre to frame the MoP based on four criteria—transparency, eligibility criteria for judicial appointments, a permanent secretariat to assist the collegium and a mechanism for complaints against candidates.
He said that the court should either leave the memorandum of procedure entirely to the government, or direct the government to frame it.