Making Sense of the Rebel Judges' Reference to the R.P. Luthra Case

Senior judges highlight example of case assigned to bench which subsequently ruled on an issue that it did not have the authority to pronounce on.

New Delhi: At Friday’s press conference, four senior judges of the Supreme Court raised serious questions about the exercise of administrative responsibilities as the master of the roster by Chief Justice Dipak Misra. As Justice Ranjan Gogoi conceded in response to a question from journalists, the trigger was evidently their anguish over the manner in which the petition seeking an independent probe into CBI Judge B.H. Loya’s death had been listed. But the judges released a letter which they had sent to the CJI a few weeks earlier elaborating on their broad concerns about the allocation of cases:

“There have been instances where case (sic) having far-reaching consequences for the nation and the institution had been assigned by the Chief Justices of this Court selectively to the benches “of their preference” without any rationale (sic) basis for such assignment.”

This must be guarded against at all costs, they stressed.

The judges chose to avoid mentioning details of specific cases where benches had been selectively assembled in order to save the institution any embarrassment, although they admitted that its image has been already damaged by such instances.

The only instance they did cite was R.P. Luthra v Union of India, – which was heard by a two-judge bench comprising of  Justices Adarsh Kumar Goel and Uday Umesh Lalit on October 27 last year. In its order delivered that day, the bench held that there should be no further delay in finalising the memorandum of procedure (MoP) for the appointment of judges in the larger public interest.

In their (undated) letter released on Friday, the four rebel judges told the CJI out that any issue with regard to the MoP should be discussed in the chief justice’s 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”, they emphasised.

It is clear that the four judges were extremely unhappy with the assigning of the R.P. Luthra case to the Goel-Lalit bench, which is court No.11, in the court’s hierarchy.

Viewing this development with serious concern, the four judges said in their letter to the CJI that he was duty bound to rectify the situation and take appropriate remedial measures after a full discussion with the other members of the collegium and at a later stage, if required, with other judges of this court.

The judges end their letter by saying that “once the issue arising from the order dated October 27, 2017, in RP Luthra Vs UOI, mentioned above, is adequately addressed by you and if it becomes so necessary, we will apprise you specifically of the other judicial orders passed by this court which would require to be similarly dealt with.”

R.P. Luthra decision since recalled

Chief Justice Dipak Misra. Credit: Twitter

Justice Dipak Misra. Credit: Twitter

Though the letter is not dated and Justice Chelameswar said it had been sent “two months ago”, it was presumably written before the November 8 decision of a three-judge bench – comprising Chief Justice Misra and Justices A.K. Sikri and Amitava Roy – in the same matter. In this decision, the bench clearly held that issues related to the MoP “cannot be taken up on the judicial side as the law has already been settled by the constitution bench in NJAC case.”

Accordingly, it decided that there was no need to proceed with the prayers other than Luthra’s individual grievance, which the Goel-Lalit bench had “correctly declined to entertain”.

Luthra, a lawyer, had argued that the Supreme Court collegium had erroneously rejected his claim to be considered for appointment as a judge because the MoP had not been finalised and therefore, the collegium’s recommendations to appoint others as judges, in the absence of the revised MoP, were all invalid. Both the Delhi high court and the Goel-Lalit bench found no merit in this contention.

But the Goel-Lalit bench felt the need to consider the other prayer that there should be no further delay in finalisation of the MoP. “Even though no time limit was fixed by this court for finalisation of the MoP, the issue cannot linger on for [an] indefinite period. The order of this court [in the NJAC case] is dated December 16, 2015, and thus more than one year and 10 months have already gone by”, the bench had observed in its order.

However, the CJI-Sikri-Roy bench held on November 8 that there was no need to proceed with the same, in view of the constitution bench judgments in the NJAC case in 2015.

“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 CJI-Sikri-Roy bench held in its order on November 8, 2017.

The four judges who went public with their letter to the CJI have expressed their concerns over the October 27, 2017 order of the Goel-Lalit bench, but made no reference to  the November 8, 2017 decision of the CJI-led bench subsequently, presumably because the letter was written before the CJI took his remedial action.

This is what Justice Chelameswar told reporters on Friday:

“A couple of months back, four of us gave a signed letter to the CJI…and we wanted a particular thing to be done in a particular manner. The thing was done, but in such a way that it left too many questions; it raised further questions and further doubts about the integrity of the institution and many more things happened.”

The November 8, 2017 decision shows that the CJI’s decision to allocate the R.P. Luthra matter to the Goel-Lalit bench was perhaps incorrect – and that this was subsequently remedied by him, when it was brought to his attention. But evidently the manner in which this was done, as far as the four judges are concerned “left too many questions”.

Exactly what those questions are and what are the “many more things” which happened subsequently  was not spelt out by Justice Chelameswar and the other three senior judges.

One of those “things” is likely the November 10, 2017 decision of the CJI-led constitution bench which annulled the order of court no. 2 (headed by Justice Chelameswar) in the medical college case.

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