In a surprise move Wednesday, the Supreme Court recalled its earlier order which, while questioning the delay in finalising the Memorandum of Procedure (MoP) for appointment of judges to the higher judiciary, had decided to take up the matter on the judicial side.
Recalling the October 27 order of the two-judge bench of Justices A K Goel and U U Lalit, a three-judge bench, comprising Chief Justice of India Dipak Misra and Justices A K Sikri and Amitava Roy, said: “As far as the other prayers are concerned, there was no necessity or need to proceed with the same, more so, in view of the Constitution Bench judgments in Supreme Court Advocates-on-Record Association and Another vs Union of India (2016)… Accordingly, the order passed on 27th October, 2017, relating to other aspects barring non-entertainment of the special leave petitions, stand recalled.”
During the hearing, the bench said “these are not matters to be taken up on the judicial side like this” but did not explain why it should not be pursued on the judicial side.
The recall order comes at a time when the Supreme Court Collegium and the government are locked in a tussle over the MoP — it has been on ever since a five-judge bench of the Supreme Court struck down the National Judicial Appointments Commission (NJAC) Act, 2014 and asked the Centre to finalise the MoP. A draft MoP, drawn up in March this year, has not been finalised since the government and Collegium are yet to agree on some of its clauses, including whether a candidature can be rejected on national security grounds.
On October 27, while hearing a petition filed by lawyer R P Luthra, who had challenged the appointments made to the higher judiciary in the absence of the revised MoP, the bench of Justices Goel and Lalit issued notice to the Centre and directed the presence of Attorney General K K Venugopal. This development took the government by surprise, given that the matter was being dealt until then on the administrative side by the Supreme Court.
The two-judge bench found substance in Luthra’s contention that the MoP must provide for a mechanism so that appointment of regular Chief Justices of High Courts are not delayed unduly. But it said there was “no merit” in his challenge to the appointments already made to the Supreme Court and the High Courts in the absence of the revised MoP.
Justices Goel and Lalit said: “We need to consider the prayer that there should be no further delay in finalisation of MoP in larger public interest. Even though no time limit was fixed by this court for finalisation of the MoP, the issue cannot linger on for indefinite period.” They fixed November 14 for considering the matter again and appointed senior advocate K V Vishwanathan as amicus curiae.
The matter, however, was transferred to the CJI-led bench and listed for hearing Wednesday.
Perusing the two-judge bench order, the CJI-led bench said the petitioner’s plea was for mitigation of an individual grievance which the two-judge bench had correctly declined to entertain. But it said there was no need for the two judges to proceed with the rest.
Vishwanathan opposed the recall, saying the issue of MoP had been pending since 2015 and was a “matter of grave concern”.
“There is a feeling that there is delay… Access to court is a fundamental right… Pendency is shocking, vacancy is shocking,” he said.
But this did not go down well with CJI Misra who said: “You are giving a speech… You don’t know what we have done. We don’t intend to say it here.” He said there was no need for a debate on the issue.
The order came at the end of a hearing which saw petitioner Luthra repeatedly questioning the bench. He wanted that the court hear him and then give an order, but the bench pointed out that his plea had already been turned down by the two-judge bench.
As the petitioner protested, Justice Roy asked him not to shout. But Luthra continued even after the bench had delivered its order. Finally, it was left to Justice Sikri to warn him not to force the bench to resort to measures to evict him.