An MoP is made by the Executive, not the judiciary – AG Rohatgi on judicial appointments

The Supreme Court today gave the green signal to the existing Collegium to continue with the appointment of judges. The Constitution Bench, which has been hearing suggestions for improving the Collegium system, also reserved its order in the matter today. With this, the hearing in the case which started in March this year has come to an end..When the matter was taken up at ten-thirty today, Attorney General Mukul Rohatgi submitted that the Centre cannot submit a draft Memorandum of Procedure (MoP) for the court’s consideration of the court. The Bench had asked the AG to submit a draft MoP setting out the working of the Collegium based on the suggestions received from the public..Rohatgi argued today that an MoP is an document prepared by the Executive in consultation with the Chief Justice of India and the Centre cannot submit a draft of the same to the court for vetting by the court..“It is an unnecessary burden which your lordships are taking up. It is the function of the Executive to draft the same and work out the finer details. It is very much like the execution of a decree. Even after the 9 judge Bench decisions, the MoP was prepared by the Executive and sent to the CJI. It went back and forth two to three times.”.He submitted that the court can give a judgment detailing what all needs to be reflected in the Collegium and leave it at that..“Even if your lordships give any directions on what is before the court today (suggestions from the public), it need not involve itself in the MoP at all. Give a judgment with directions and we will execute the judgment.”.Justice Madan Lokur pointed out that the current MoP has not fully incorporated the mandate of the 9 judge Bench judgments and same thing might happen again..“Lot of requirements mandated by the 2nd Judges case don’t reflect in the current Memorandum. The same thing might happen again.”.Rohatgi said that it could be challenged in the court on that ground to which Justice Lokur replied that it will only result in further litigation..Subsequently, the Court gave opportunity to other lawyers and litigants to make oral submissions before reserving its order. Importantly, the Court also directed that the “process of appointment of judges by the Collegium which is in vogue shall not be put on hold”.