SC recalls order asking government to explain why memorandum of procedure to appoint judges was not notified

New Delhi: In a twist, the Supreme Court has recalled the order of its two-judge bench on examining the issue of delay in finalising the Memorandum of Procedure for appointment of judges in higher judiciary. A three-judge bench headed by Chief Justice Dipak Misra found fault with the smaller bench saying these issues cannot be taken up on the judicial side as the law has already been settled by the constitution bench in the NJAC case.

The hearing also witnessed heated exchanges between the Bench, advocate R P Luthra and amicus curiae K V Viswanathan who was appointed by the smaller bench. Today’s order by the bench, which also comprised Justices A K Sikri and Amitava Roy, assumes significance as a bench of Justices Adarsh Goel and U U Lalit had on October 27 decided to examine the issue on judicial side and issued a notice to Attorney General K K Venugopal to assist in the matter.

The smaller bench passed the order on Luthra’s petition challenging appointment of judges in the apex court and high courts on the grounds that MOP was not finalised as per the court’s verdict. The matter, which was listed for hearing on November 14 before the same two-judge bench, was on Tuesday notified to be listed for Wednesday before the larger bench headed by the CJI. The heated exchanges saw the larger bench dismissing Luthra’s appeal saying, “This order should not have been passed on the judicial side.”

“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 had sought primarily for mitigation of an individual grievance which the two-Judge Bench has correctly declined to entertain,” the bench said. The three-judge bench said there was “no necessity to proceed with the same, more so in view of the constitution bench judgments.”

At the outset, Luthra said the bench could not dismiss his petition without hearing him and justice would be denied if he was not allowed to raise his grievances. “Your grievance is that you were not considered for appointment as a Supreme Court judge. You don’t need to raise your voice for this. You have come here to plead before the court. I personally wonder whether with this demeanour, it can be considered,” Justice Roy said. Luthra again argued that the court was condemning him by questioning his ability.

The bench, however, refused to listen to him and dismissed his plea. In its October 27 order, the apex court said that even though there was no time limit fixed for finalisation of the MOP, the issue cannot linger on indefinitely and “there should be no further delay in finalisation of MOP in larger public interest”. There are differences of opinion over terms of the MOP for appointments in the higher judiciary between the Supreme Court collegium and the government.