Supreme Court judges vs CJI Dipak Misra: All you need to know about controversial RP Luthra case

The press conference called by Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph has attracted a lot of attention with several reports terming it as a “mutiny” inside the Supreme Court. The four judges said on Friday that the situation in the apex court was “not in order” and many “less than desirable” things have taken place.

To convey the “less than desirable” things taking place inside the apex court, the four justices referred to a letter that they had written to the Chief Justice of India Dipak Misra. The letter mentions an order passed in the case RP Luthra vs Union Of India Ministry Of Law And Another respondents passed on 27 October. What does the order in the RP Luthra case say that made the four justices speak publicly against the CJI?

Based on the letter to the CJI, the four justices made public on Friday, it seems clear that the main point of contention at present is the delay in implementing the Memorandum of Procedure towards the appointment of judges in India. “…there should be no further delay in finalisation of MOP in larger public interest,” the SC order in the Luthra case had said and was reiterated by the four judges as well in their letter to the CJI.

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RP Luthra versus Union Of India Ministry Of Law case explained

Luthra, a lawyer, had challenged the appointments made to the higher judiciary in the absence of the revised MoP. While hearing the petition, on 27 October, 2017, the bench of Justices Adarsh Kumar Goel and Uday Umesh Lalit had issued a notice to the Centre and directed the presence of Attorney-General KK Venugopal.

In its order, the two fustices though rejected Luthra’s challenge seeking cancellation of the appointment of judges without the MoP, the two justices found merit in the arguments stating that “there should be no further delay in finalisation of MOP in larger public interest”.

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The two justices stressed on the need “to set up a mechanism for corrective measures other than impeachment against the conduct of an erring judge” citing the court’s 4 July, 2017 order on a case involving Justice CS Karnan.

It further added that the collegium must begin the process to fill vacancies of chief justices of high courts begin at least a month before vacancies arise an in accordance with “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 Others versus Union of India, (1993) 4 SCC 441, para 478”.

This development took the government by surprise since the MoP was dealt on the administrative side by the Supreme Court.

The two justices had then fixed 14 November for next hearing and had appointed Senior Advocate KV Vishwanathan to assist the court as amicus.

What’s CJI Dipak Misra’s involvement in the case?

The matter, however, was transferred to a three-judge bench. On 8 November 2017, a three-judge bench, comprising Misra and Justices AK Sikri and Amitava Roy recalled the 27 October, 2017 order by Goel and Lalit saying that “these are not matters to be taken up on the judicial side like this”. The bench, however, did not explain why it should not be pursued on the judicial side, The Indian Express reported.

“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 versus Union of India (2016)… Accordingly, the order passed on 27 October, 2017, relating to other aspects barring non-entertainment of the special leave petitions, stand recalled,” it quoted the three-judge bench as saying.

This recalling of the order is what the four justices Chelameswar, Gogoi, Lokur and Joseph refer to in their letter. In the letter, the four justices criticised the three-judge SC bench’s method of functioning stating, “Any issue with regard to the Memorandum of Procedure should be discussed in the Chief Justices’ Conference and by the full court. Such a matter of grave importance, if at all required to be taken on the judicial side, should be dealt with by none other than a Constitution Bench.”

“The above development must be viewed with serious concern,” they added.

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