The final day of the hearing on neo-Collegium at Court No.4 in Supreme Court began at 10.40 am yesterday (19 November), with the presiding Judge, Justice JS Khehar claiming that the 10-minute delay in assembling was due to some discussions which the five judges had among themselves about the hearing.
While none had any clue about the nature of their discussions, it was clear that they were hardly prepared for a disappointment from the Attorney General, Mukul Rohatgi.
The AG, who the bench expected to submit a draft Memorandum of Procedure (MoP) incorporating the Centre’s suggestions for reforming the Collegium as promised by him yesterday, today deplored that the bench unnecessarily burdened him with this responsibility.
Explaining his stand, the AG said that the MoP is only an executive document on how to implement a judgment of the court, after consultations and clearance from the CJI Therefore, he said, the MoP can only be revised in the aftermath of a judgment; a draft MoP cannot be approved by the Prime Minister and the CJI, which itself is supposed to be revised pending the judgment in the neo-Collegium case, he clarified.
If the court gives directions, the MoP will be prepared in line with it; therefore, give directions, and leave the matter of revising the MoP to the Government and the CJI, he said. According to him, both the 9-Judge benches in the Second and Third Judges cases were hardly concerned with the task of revising the MoP They gave directions, and the Government revised the MoP, after getting CJI’s concurrence.
Supplement, not supplant
The AG cautioned the bench asking what was the purpose in seeking a draft MoP, when the current Bench can only supplement the existing MoP, and not supplant it, as the bench strength will become an issue, if it intended to radically change the MoP Justice Khehar agreed with this reasoning of the AG, but suggested that the request for a draft MoP with revisions, was only an exercise to understand how to reform the Collegium. “Eventually what direction we pass will be based on this understanding”, Justice Khehar explained, conceding that there is a lot of substance in what the AG had submitted.
To this, the AG replied that he was bound by the rules, and that it was not possible for the Government to prepare a draft MoP He suggested that such a draft would dilute the powers of the CJI, who had to give his consent for revising MoP In sum, he argued that preparing a draft MoP is a burden, which is not required.
Justice Lokur intervened to suggest if there is a gap in MoP, the bench could require its correction, without a judicial order. The AG responded to it saying the Government could act only on orders. Justice Khehar clarified that the bench wanted the draft MoP because it is faced with suggestions from many which run to 11000 pages.
To this, the AG responded saying ‘Give a verdict, and be done with it. Bring an end to this; Get someone prepare the draft. I can’t. If I give something, then the Government is bound by it. I did not offer it yesterday. I don’t want to go into what I said yesterday’.
Justice Adarsh Kumar Goel said, even now without the bench’s directions, the Government can revise the MoP; therefore, he implied what was the fuss all about.
Senior counsel, Rajeev Dhavan, who made submissions later, suggested that if the AG felt that he would invite conflict of interests by submitting a draft MoP as the officer of the court rather than that of the Government, then his view must be respected. He further argued that it is for the Collegium to decide whether to consult non-Judicial members of an advisory body. Government or the Bar Council of India cannot tell the Collegium to consult so and so, and seek their advisory opinion on choosing Judges. The autonomy of the Collegium must not be diluted, he cautioned the bench.
Although the bench heard diverse suggestions on reforming the Collegium and its functioning, certain suggestions were repeatedly heard from the counsel. One was that seniority must not be a deciding factor, and comparative merit of the candidates should be a relevant consideration. Second was that while appointing High court Judges, candidates who are less than 45 years of age must also be considered on the basis of merit.
The third suggestion was to enhance the retirement age of High Court Judges from 62 to 65, on par with the retirement age of the Supreme Court Judges, in order to avoid the mad race among the high court Judges to become the Supreme Court Judges on the verge of their retirement.
The bench, which concluded the hearing at 4.30 p.m., read out a brief interim order through Justice Khehar, reserving the order on neo-Collegium, and clarifying that the Collegium meetings would not be put on hold till it is delivered.
The clarification, it appears, was found necessary because many counsel had expressed dismay that the delay in concluding the neo-Collegium proceedings was coming in the way of filling the huge backlog in vacancies in high courts and this has, in turn, led to mounting arrears of cases.