A Disturbing Trend

Source: The Hitavada      Date: 13 Nov 2017 11:58:20










The new law had sought to overturn the over two decade old collegiums system, where judges appoint judges. It had sought say of the Executive in appointment of judges. The national security and secretariat clauses are part of the draft MOP, which has been shuttling between the Government and the collegiums since March 22, 2016.


ON NOVEMBER 8, 2017, several eyebrows were raised in high echelons of legal circles in the country, when a CJI led 3-Judge Bench at the Supreme Court decided to hear R.P. Luthra’s plea by advancing the hearing originally fixed for November 14, 2017, by a 2-Judge Bench on October 27, 2017 and the court went ahead and recalled two orders. One was passed on October 27, 2017, to the extent, it was related to other aspects barring non-entertainment of the special leave petitions. The “other aspects” of the recalled Order was in response to the plea questioning delay in finalising MOP and appointments of judges. Both the cases pertained to issues of considerable significance. One was in respect of delay in finalising MOP.

The second was in a matter related to exploring the possibility of an alternate forum to decide criminal appeals without delays. While the other bench comprising Justices Adarsh K. Goel and Justice U.U. Lalit sought assistance of the Attorney General, the CJI-led Bench wrapped up the cases without requiring to hear the AG on the first day, in a hearing spanning less than 30 minutes.

Questions arose what exigency required the Bench headed by the CJI, who is also the Master of the Roster and in-charge of allocation of cases to different courts, to transfer these cases to itself and then close the proceedings. Was it not an instance of an “intra-court” appeal, which Rules do not provide for? Then on November 9, 2017, Senior Advocate Dushyant Dave approached the division bench of the court headed by Justice J. Chelmeswar for an urgent listing of a PIL.

He claimed that the top Court must step in because the credibility of the judiciary and the judges were at stake in view of certain bribery allegations and hence, the truth has to be unravelled. A day ago, Dave along with Advocate Prashant Bhushan mentioned similar PIL arising out of the same criminal case and identical prayers. Justice Chelmeswar posted the other case on Friday. However, on Friday, Justice Chelmeswar, on urgent basis, agreed to take up the second similar matter at 12.45 pm.The direction was to place the matter before the Bench headed by him.

At 12.45 pm Dave sought independent probe by an SIT headed by a former CJI in the wake of the allegations that the rot of corruption behind granting approvals to medical colleges could run to the top judiciary. Dave pointed out that a former Odisha HC Judge was arrested in this case and FIR indicated that some others could also be involved. Justice Chelmeswar found substance in Dave’s arguments and agreed to examine the case,” in the interest of the institution and the whole nation”. The bench also directed the CBI to produce all material on investigations in this case before the court for safe custody which essentially meant a stay of trial proceedings. Besides this, the case was also referred to a Constitution Bench.

Seconds before Justice Chelmeswar was to dictate the order, the bench received a draft order issued “purportedly by the CJI”. This order, according to the sources, talked about the listing of the similar PIL before another court on Friday.

In the order passed by Justice Chelmeswar, the possibility of an opinion by the CJI seems to be dispensed with. Perhaps because in Dave’s petition it was prayed that CJI be kept away from the case both on the administrative and judicial sides as in most of cases of granting recognition to medical colleges were heard by the Bench led by the CJI. While this case will now come up on November 13 next the other PIL will be heard by a different Bench. These are unprecedented developments. It is general feeling that silence of fellow judges and abstinence at such a time of crisis may in fact prove too costly.

In the first case relating to MOP, the apex court Bench consisting of the Chief Justice, Dipak Misra, Justice A.K. Sikri and Justice Amitava Roy passed the Order as an anti-climax and amidst high drama, dismissing the petition, seeking an explanation from the Centre for the delay in finalising the memorandum of procedure (MOP) for appointment of judges to the Supreme Court and High Courts and which also questioned continuing appointments even when the MOP has not been finalised.

The Supreme Court has commented in its latest order: “Having considered the entire facts and circumstances of the case and further taking note of the relief clause, we have no iota of doubt that the petitioner (Luthra) had sought primarily for mitigation of an individual grievance which the two-Judge Bench has correctly declined to entertain. “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 judgements in Supreme Court Advocates –on –Record Association and Another v. Union of India –(2016) 5 SCC 1 and” in one other case between the same parties – AIR 2016 SC 117.

“Accordingly, the order passed on 27th October, 2017, relating to other aspects barring non-entertainment of the special leave petitions, stand recalled. “In view of the aforesaid analysis, there is no justification or warrant to keep the special leave petitions pending and the same are, accordingly, disposed of.” It was Luthra’s exclusion from the zone of consideration by the SC Collegium, which led to this case before the Delhi HC, and then the Supreme Court. On October 27, the bench of Justice Adarsh Goel and Justice U.U. Lalit had said: “We agree with the view of the High Court that there is no merit in challenge to the appointment of judges of this court and the High Courts on the ground that the MOP was not finalised in terms of the decision of this court in Supreme Court Advocates-on- Record Association & Another v. Union of India (2015) 5 SCC 1 para 1255 (NJAC Case, 2016). However, we need to consider the prayer that there should be no further delay in finalisation of the MOP, the issue cannot linger on for indefinite period. The order of this court is dated 16th December, 2015 and thus more than one year and ten months have already gone by”.

Luthra had questioned appointments being made to various High Courts and Supreme Court despite MOP not being finalised. But the HC had dismissed the petition after which he moved the Supreme Court. The Bench also said it found substance in the submission that the MOP must provide for a mechanism so that appointments of regular Chief Justices of High Courts are not unduly delayed. “No doubt, the process is to be initiated by the Collegium and proposal is expected to be so initiated before accrual of the vacancies so as to ensure that appointments take place by the time vacancies arise and that the arrangement of acting Chief Justices does not exceed one month, as stipulated in para 5 of the MOP currently in force, in pursuance of judgement of this Court in the Supreme Court Advocates-on-Record Associationand Others v. Union of India, (1993) 4 SCC 441 para 478”, the bench has said.

Since January last, the Government and the apex court are trying to finalise the MOP –the Memorandum of Procedure – a document to guide appointment of judges to the highest judiciary. While rejecting the National Judicial Appointments Commission- NJAC Act, the Supreme Court had agreed to revise the MOP to usher in more transparency in appointment of judges in the apex court and the High Courts.

The new law had sought to overturn the over two decade old collegiums system, where judges appoint judges. It had sought say of the Executive in appointment of judges. The national security and secretariat clauses are part of the draft MOP, which has been shuttling between the Government and the collegiums since March 22, 2016. In its latest response in March to the revised draft of the document, the collegium has made it clear that it will have the last say in cases where its recommendation for appointment of a judge is returned by the Government on the grounds of national security and public interest.