These are not matters to be taken up on the judicial side and so we are dismissing the petition, the bench said.
In an anti-climax and amidst high drama, a three Judge Bench of the Supreme Court headed by Chief Justice Dipak Misra today dismissed a petition which sought an explanation from the Centre for the delay in finalizing 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 had not been finalised.
"There was no necessity to proceed in this issue in view of the Constitution Bench judgment in 2016 Advocates On Record case...we do not intend to keep it pending" ,the bench said dismissing the Plea.
A bench of justices Adarsh Kumar Goel and U U Lalit had on October 27 issued notice to Centre on the issue and sought the presence of Attorney General K K Venugopal. The notice had been issued on a petition filed by an advocate R P Luthra.
Eyebrows were raised when CJI led bench decided to hear the Plea by preponing the hearing originally fixed for November 14.
When the CJI began to say that the Division Bench entertaining the matter on the judicial side, when it is an administrative issue, has to be addressed, it was clear that the bench wanted to dismiss Luthra’s petition, and close any chance of the Division bench further hearing the matter. When the bench’s mood became apparent, the petitioner, R.P.Luthra vociferously protested, and said it was not his prayer at all. Alternating between English and Hindi, he told the bench he had challenged the Collegium’s recommendations and not the appointments as such. He also told the bench that the MoP was not the issue which he had raised.
The bench then heard Amicus Curiae in the case, K.V.Vishwanathan, who pointed to the two years’ delay in finalizing the MoP, and requested the bench to keep the matter pending. But the bench was unrelenting.
Luthra continued his protest vociferously, by arguing that the bench cannot dismiss the petition without hearing him out. Justice Roy objecting the Luthra raising his voice. When Luthra continued to insist that he must be heard, Justice Sikri said the bench had heard him. Luthra asked how could the bench condemn him without hearing him.
When Justice Roy commented on the ‘level’ of the SC Judges, Luthra vehemently protested that the Judge should not have cast aspersions on his ‘lack of’ competence for elevation as the SC Judge. It was Luthra’s exclusion from the zone of consideration by the SC Collegium, which led to this case before the Delhi high court, and then the Supreme Court.
On October 27, the bench of Justice Goel and Justice 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 finalized in terms of the decision of this Court in Supreme Court Advocate-on Record Association & Anr. 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 finalization of MOP in larger public interest. Even though no time limit was fixed by this Court for finalization 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 finalized. But the HC had dismissed the petition after which he moved the SC. 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 Memorandum of Procedure for Appointment (MOP) currently in force, in pursuance of judgment of this Court in Supreme Court Advocates-on-Record Association and Ors. v. Union of India, (1993) 4 SCC 441, para 478”, it said.
Since January last, the government and the apex court are trying to finalise the memorandum of procedure -- a document to guide appointment of judges to the higher judiciary. While rejecting the National Judicial Appointments Commission Act, the Supreme Court had agreed to revise the memorandum of procedure to usher in more transparency in appointment of judges to the apex court and the high courts.
The new law had sought to overturn the over two decade old collegium system where judges appoint judges. It had sought say of the Executive in appointment of judges. The national security and the secretariat clauses are part of the draft MoP which has been shuttling between the government and the collegium 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.
Read the Order Here