Judges appointment: SC recalls order asking govt to explain why memorandum of procedure was not notified

A Supreme Court bench, led by Chief Justice Dipak Misra, disposed of a case related to the delay in finalising the new procedure to appoint judges and recalled a fortnight-old order that asked the government to explain why the new Memorandum of Procedure (MoP) was not yet notified.

On October 27, a bench of justices AK Goel and UU Lalit had issued notice to attorney general on the issue. It took cognisance of the delay while hearing a petition filed by advocate RP Luthra who wanted the court to strike down all fresh appointments made after the apex court’s verdict that directed the government to frame a new MoP.

Luthra contended no new judges to the high court can be appointed in the absence of the fresh MoP.

Although the court refused to entertain this plea, it agreed to look into the delay part noting the SC order was of December 16, 2015. Venugopal was to revert on November 14.

However, the petition was brought forward and taken up by a larger bench of three judges headed by CJI Dipak Misra.

“This (issue) is not required to be taken up on judicial side,” the CJI told senior advocate KV Vishwanathan whom the two-judge bench had asked for assistance.

“It is a matter of grave concern. There is a feeling that there is undue delay. The pendency is shocking. Access to justice is a fundamental right,” Vishwanathan told the judges, requesting them not to dispose of the matter.

“There was no necessity to proceed in view of the Constitution bench judgment in 2016 Advocates On Record case (that laid down the procedure to appoint judges)…we don’t intend to keep it pending,” the bench responded. CJI said he has taken effective steps and was unable to spell them out in the open court.

“How do you know what we have done? I cannot disclose all the things here,” the CJI said.

When Vishwanathan insisted the petition should be kept pending, the CJI retorted: “Please do not lecture here.”

The top court and the government have been at loggerheads over how to appoint judges.

In 2015, the SC struck down a law the Centre brought — the National Judicial Appointments Commission Act — to end a more than 20-year-old practice, unique to India, of judges appointing judges under a collegium system.

The CJI’s bench also recalled another order justices Goel and Lalit had issued with regard to setting up of courts of appeal to enable speedy disposal of criminal cases that linger in high courts for years.