The government, whose bid to replace the collegium system was thwarted recently, was on Wednesday entrusted by the Supreme Court with the task of framing a draft Memorandum of Procedure (MOP) for future appointments in higher judiciary after considering all suggestions on the issue.
The apex court’s direction, entrusting the major role to the Centre, however faced stiff opposition from senior advocate Gopal Subramaniam who said “suggestions are welcome”, but the executive cannot be allowed to draft even the draft memorandum. He referred to the judgement, striking down the National Judicial Appointments Commission Act and 99th constitutional amendment and said the prime reason for his objection was the endeavour to protect judicial independence and hence, the executive cannot be allowed now to have a role.
“You (Subramaniam) are jumping the gun. They are not going to issue MOP. Everybody is seeking transparency and there are no sides. Government also intends to make it transparent and broad-based. We are just taking their inputs as it is a very important stakeholder.
“We may or may not accept their suggestions. We have struck down their NJAC. You think we can’t flick out a mere clause in their draft MoP. Nobody can interfere in the process. You are just assuming that this is fait accompli,” a five-judge Constitution bench headed by Justice J S Khehar said.
Subramaniam, however, kept insisting on his arguments and also referred to the second and third judges case to highlight that the Centre should be denied a role in drafting the MoP. “There is no going back as far as second and third judges case is concerned. Independence of judiciary is very vital and must. MOP is only an executive memorandum to operationalise a judicial order. It (MOP) cannot be left to the executive. It is judiciary’s exercise. MOP should only be a proposal after a final view is taken by this court.