Attorney General Mukul Rohatgi on Thursday declined to take up the task of preparing a draft of suggestions for the improved and transparent functioning of the collegium system for the appointment of judges to higher judiciary.
The apex court had on Wednesday asked the Attorney General, acting as an officer of the court and not as the first law officer of the government of India, to go through 1,450 suggestions received in eight days from November 5 to November 13 from the public and other stakeholders for an improved working of the collegium.
Every practising lawyer is also considered an officer of the court.
The court had invited these suggestion by its October 16 verdict by which it had held that the NJAC Act and the 99th constitutional amendment backing it were unconstitutional and void and had restored the collegium system.
"I can't do anything which is not permissible. I can't wear a different hat (of an officer of the court) and do things that binds the government," Rohatgi told the constitution bench of Justices Jagdish Singh Khehar, J. Chelameswar, Madan B. Lokur, Kurian Joseph and Adarsh Kumar Goel.
As Rohatgi declined to prepare the draft suggestions, the court on Thursday reserved its order on the suggestions.
Telling the court that the memorandum of procedure prepared by the government after the 1998 verdict in the third judges case could not be "supplanted" but could only be "supplemented", Rohatgi said that neither he nor the government would prepare the draft suggestions and give it to the court.
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"It is not possible for me or the government to make the draft suggestions," he said.
Rohatgi said that if the court wanted the government to prepare draft suggestions, then it could pass a judicial order, while at the same time wondered whether a constitution bench with a strength of five judges could ask the government to improve a procedure that was put in place in the wake of the 1998 verdict in the third judges case by a constitution bench of nine judges.
Telling Rohatgi that they were not going to "supplant" the existing memorandum of procedure but only "supplement" it, Justice Khehar said it was a government document and what were the hiccups in improving it.
Rohatgi said preparing the memorandum of procedure was an exercise between the government and the Chief Justice of India and there could be no process that takes away the presence of the CJI in preparing an improved version.
The court had asked Rohatgi to prepare draft suggestion as its earlier order asking the law ministry to prepare draft suggestions was stoutly opposed by counsel Gopal Subramanium, who had contended that there could be no shadow of the government in the implementation of the court's direction for an improved and transparent functioning of the collegium.
The existing memorandum was notified on June 30, 1999.
Telling the court that there could be suggestions by the government for an improved working of the collegium, counsel Rajeev Dhavan told the court that the memorandum should be evolved by the collegium itself.
"It is not for the government to decide on the working of the final memoranda," Dhavan told the court.
Disagreeing with Subramanium and Dhavan, counsel P.P. Rao told the court that there could be no mistrust towards the government.
Telling the bench that the "Supreme Court by a judicial order cannot improve the collegium system to ensure transparency, accountability and objectivity in the selection of candidates for judgeship", Rao said a "coordinated action by all the three wings of the state, namely the executive, parliament and the judiciary alone can improve the system in the manner desired".