CJI Bench Recalls Two-Judge Bench Order on Memorandum of Procedure Row

One bench of the Supreme Court rarely recalls the decision of another bench within the span of one month, when the judges of the earlier bench are yet to retire.

One bench of the Supreme Court rarely recalls the decision of another bench within the span of one month, when the judges of the earlier bench are yet to retire.

Supreme Court. Credit: PTI

Supreme Court. Credit: PTI

A three-judge bench of the Supreme Court decided on Wednesday that the procedure adopted by a two-judge bench earlier to judicially resolve the tug-of-war between the Centre and its collegium over finalising the revised Memorandum of Procedure (MoP) for appointing judges of high courts and the Supreme Court was flawed, and restored it to its administrative realm.

The decision is likely to set off a controversy of sorts, as one bench of the Supreme Court rarely recalls the decision of another bench within the span of one month, when the judges of the earlier bench are yet to retire.

The bench of the Chief Justice of India Dipak Misra and Justices A.K. Sikri and Amitava Roy, after a dramatic hearing of the case, held that the petitioner R.P. Luthra had primarily sought for mitigation of an individual grievance, which the two-judge bench had correctly declined to entertain earlier.

Luthra was aggrieved that he was not considered for appointment as a judge of the Supreme Court by the collegium earlier this year, and had challenged its recommendation to appoint others as judges as violative of his fundamental right to equality. Both the Delhi high court and the Supreme Court bench of justices Adarsh Kumar Goel and Uday Umesh Lalit rejected his contention.

However, Justices Goel and Lalit, in their order on October 27, had directed an issue of notice to the Attorney General K.K. Venugopal, seeking an explanation on the inordinate delay in finalising the revised MoP, leading to non-filling of vacancies of judges in the high courts and the Supreme Court in time. They also appointed senior counsel K.V. Vishwanathan as the amicus curiae in the case.

Justices Goel and Lalit considered the fact that the Supreme Court’s constitution bench, in its consequential judgment on the collegium delivered in December 2015, after striking down the National Judicial Appointments Commission (NJAC) Act, had directed the Centre to finalise the revised MoP, in accordance with its guidelines to ensure transparency, eligibility criteria, Secretariat, and a mechanism to deal with complaints against the proposed appointees.

When the matter got listed before the three-judge bench, it created quite a surprise among the observers. The five-judge constitution bench, hearing the Delhi-Centre turf war, had risen a five minutes earlier, with senior counsel P. Chidambaram on his feet when it finished. As listing of the cases and allocation of the benches is the exclusive prerogative of the CJI on the administrative side, the outcome of the hearing was a foregone conclusion. It was clear that the CJI did not like his administrative authority eroded by his brother judges through a judicial decision, while sitting on another bench.

Acrimonious hearing

However, what the three-judge bench was little prepared for was the ugly spat between Luthra and the bench, which was determined to dispose of the case on Wednesday itself. Luthra sought a hearing of his case before disposing it and argued that his prayers in his Special Leave Petition (SLP) did not include the MoP issue, and it was an after-thought by the division bench. Luthra vehemently submitted that the grounds of his SLP deserved to be heard, even if the three-judge bench believed that the MoP was an administrative matter. At one point, the exchange between Justice Roy and Luthra turned to be acrimonious, with the latter taking objection to an alleged remark by the former about Luthra’s competence for the post of the Supreme Court judge.

The bench then heard amicus curiae K.V. Vishwanathan, who pointed to the two years’ delay in finalising the MoP, and requested the bench to keep the matter pending. He submitted that pendency of the cases is shocking, as access to justice is a fundamental right. But the bench was unrelenting.

The CJI-led bench, in its order, held that there was no necessity or need to proceed with the MoP issue in this case, more so, in view of the constitution bench judgments in the NJAC and the collegium cases in 2015.

The CJI-led bench held:

“Accordingly, the order passed on October 27, 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.”


The recalling of the decision of the bench of two judges is likely to revive the controversy which has remained unresolved since the 1980s.

Former judge, the late Justice O. Chinnappa Reddy, was part of the two-judge bench whose decision was found unacceptable. Justice Reddy, while deciding a subsequent case, asked whether a division bench of three judges could purport to overrule a judgment of a division bench of two judges merely because three is larger than two. He observed:

“The court sits in divisions of two and three judges for the sake of convenience and it may be inappropriate for a division bench of three judges to purport to overrule the decision of a division bench of two judges. It may be otherwise, where a full bench or a constitution bench does so.”

The recalling of the interim order of the Goel-Lalit bench, that issued a notice to the AGI on the MoP, by the three-judge bench may be unprecedented in the sense that the matter is yet to be heard on merits, let alone reversing a substantive order, for its failure to meet the ends of justice. Besides, the three-judge bench has not given a reasoned order on why the two-judge bench was wrong in assuming that there was inordinate delay in finalising the MoP by the Centre, which could jeopardise the citizen’s right to access justice.

The three-judge bench’s decision is of concern also because it chose to recall an order of another bench in a pending case, as against decided cases, to which precedents may be relevant. The CJI, acting on the administrative side, cannot pick a case pending before another bench, list it before himself and dispose it of hurriedly in this manner, observes noted. Such action, they said, suffers from a conflict of interest and is a violation of the principle of natural justice and the independence of the court. It involves a conflict of interest because the CJI, on the administrative side, is involved in negotiations with the Centre on the MoP, and therefore, he should not have heard this case on the judicial side, even if the purpose is to recall the order of another bench.

Second, the principle of natural justice requires that no one should be a judge in his own cause. As it is clear that the CJI has an interest in the resolution of the MoP by virtue of his leadership of the collegium, he should not have transferred the case to his court and heard it himself.

Third, it sends ominous signals to other judges sitting in division benches of two, that the pending matters before them could be simply transferred to three-judge benches by an administrative order of the CJI.

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