Supreme Court judges vs CJI Dipak Misra: How RP Luthra case played a part in igniting present controversy

Editor’s note: The case of RP Luthra versus Union of India was specifically mentioned in the letter sent by four judges of the Supreme Court to the Chief Justice of India. The case pertained to appointments to the higher judiciary and the memorandum of procedure for doing so—issues which were highlighted in the press conference called by the judges on Friday. The following article details how the Supreme Court’s order in the RP Luthra case played a part in the controversy which erupted on Friday.

A 2015 decision by five judges of the Supreme Court in Supreme Court Advocates on Record Association v Union of India & Anr [(2016) 5 SCC 1> struck down the National Judicial Appointments Commission (NJAC) and kept in place the collegium system for the appointment of judges. Under this system, the five senior-most judges of the Supreme Court act as a collegium and appoint the judges of the higher judiciary. They follow a procedure which involves consultation with the central and concerned state governments and this procedure is known as the Memorandum of Procedure (MOP). One of the outcomes of the NJAC case was that the MoP was to be tweaked and modified in order to take into account more recent developments, particularly keeping in mind the interest of transparency.

After the decision in the NJAC case, there was a long tussle between the government and the Supreme Court about the MoP. Former CJI TS Thakur came out openly in criticism of the government for holding up judicial appointments citing the fact that the MP had not been finalised yet. But in March 2017, the MoP was finalised and sent to the government during the tenure of Chief Justice JS Khehar.

In May 2017, the Supreme Court sentenced a sitting judge of the Calcutta High Court to six months’ imprisonment for contempt. The case titled In re.: Hon’ble Shri Justice C.S. Karnan [(2017) 1 SCC > was a judgment delivered by a bench of seven judges of the Supreme Court. It was the first time in the history of India and perhaps the history of the Commonwealth of Nations that a sitting judge of the higher judiciary had been convicted of criminal contempt. In a separate concurring opinion authored by Justice Chelameswar, he raised the following:

“This case, in our opinion, has importance extending beyond the immediate problem. This case highlights two things, (1) the need to revisit the process of selection and appointment of judges to the constitutional courts, for that matter any member of the judiciary at all levels; and (2) the need to set up appropriate legal regime to deal with situations where the conduct of a Judge of a constitutional court requires corrective measures - other than impeachment – to be taken.”

(Paragraph 26, Justice Chelameswar Separate Opinion in In re.: Hon’ble Shri Justice C.S. Karnan [(2017) 1 SCC)

This brings us to the order dated 27 October 2017 in RP Luthra v Union of India.  In this case, the petitioner prayed that the MoP be finalised at the earliest and that appointments for the Chief Justices of the High Courts should be initiated prior to the date at which the outgoing Chief Justice is scheduled to leave. This raised an interesting query. If the MoP had been finalised in March 2017 itself, how would this still be an open question? This case was heard by a two-judge bench, and it referred to the Justice CS Karnan case and decided to consider submissions on the finalisation of the MoP and appointment of Chief Justices to the High Courts. This decision was passed during the tenure of the current Chief Justice Dipak Misra.

In the early years of its existence, the Supreme Court had only seven judges and they would all hear matters together. Which meant that each case would come before all the judges of the Court. But as the Court expanded and its workload increased, the Supreme Court became an institution with multiple benches. Matters are heard by benches of the court comprising of one, two, three, five, seven judges or more judges depending on the matter. The record of the allotment of cases to benches is called the roster. The Chief Justice is the first amongst equals at the Supreme Court and the Chief Justice’s judgments carry no more weight than any other judge of the Court. But the Chief Justice does have powers on the administrative side. These powers include controlling the roster. This means it is up to the Chief Justice to decide which set of judges hears which matters and this power, like any other power, is something that needs to be exercised with care.

A particular judge may have domain expertise in an area of law and therefore would be suitable for a particular matter while another judge may not. These decisions are often taken by the Chief Justice while assigning matters. While there is usually a system that is followed for most regular cases, when it comes to constituting special benches or assigning matters of constitutional import, the exercise of this power becomes as important as some of the decisions of the court itself.

For example, last year much controversy fell upon the court due to the manner in which petitions concerning the UP Medical College Scam petitions were listed. This author at the time wrote about the controversy in detail and will not repeat himself here. But this is just one example of how, the mere act of bench constitution and listing of matters begin to bring an institution into a shroud of unnecessary controversy.

This afternoon, something unprecedented happened. Four of the senior-most judges of the Supreme Court after the Chief Justice held a press conference at the residence of Justice Chelameswar wherein they expressed certain reservations about the manner in which the Supreme Court was presently being run.

They presented their issues in the form of a letter that they had earlier addressed to the Chief Justice. The letter in particular dealt with the 27 October 2017 order in RP Luthra v Union of India. It sought to know how a decision that concerned a matter settled by a Constitution Bench was assigned to a bench of two judges. Further, the letter alleges that matters were being assigned by Chief Justices of the Supreme Court to benches of their preference.

In the press conference, they said that democracy was at stake and that there was “selective assignment of cases to preferred judges” and that “sensitive cases were being allotted to junior judges”. They flagged concerns about the handling of the judge Loya case (Judge Loya was the special CBI judge who was hearing a murder case against Amit Shah and mysteriously died in 2014). In the letter they sent to the Chief Justice, they state that the Chief Justice is the first amongst equals, nothing more, nothing less.

This is the first time in the history of India that there has been open dissent within the ranks of the Supreme Court and the judges at the press conference expressed pain at the fact that they had to resort to taking such a step. However, they felt this step was necessitated. They had raised the letter with the Chief Justice two months ago, but their plea was not heeded and they had raised similar plea this morning, but no steps were taken. As of writing this story, there has been no statement from the office of the Chief Justice of India.

If the senior-most judges of the Supreme Court are saying that the Chief Justice is allocating matters according to his preference and there are issues that arise from these allocations, it means that all is not well with India’s top court and that is something that the nation ought to be seriously worried about.

The most problematic thing about the 27 October 2017 order is that it reopens the MoP. The Government had not responded to the MoP sent by the Supreme Court in March of 2017, which meant that it was deemed that the government had accepted it. New judicial appointments had been made under the revised MoP since then. But the 27 October 2017 order reopened the question of the MoP and allowed for the government once more to give its comments via the Attorney General. This was effectively a backdoor reopening of a settled issue without resorting to an ordinary judicial process and to be frank, before today’s letter from these four judges, most people in the country were not aware of this order of grave constitutional significance. How did an MoP that was final in March suddenly become non-final in October of the same year? How did a matter that was to be decided by a five judge bench, suddenly get reopened by a two judge bench? Does this not cast doubts as to how matters concerning issues in which the government is involved are being allocated?

The letter is scathing in its words and content. It is going to go down as an indictment of the Chief Justice’s tenure as first amongst equals in administering the court. For all we may know, there may have been zero foul play involved here and everything that was happening was in accordance with law and practice. But the manner in which the cases have been allocated shows that there has been a deviation from propriety that would have ordinarily been required and expected from a judicial institution.

Judicial intuitions do not exercise coercive power. Only the executive does that, for it is the executive that has the power to compel people to do things by force (i.e the police, the army etc). The judiciary exercises institutional soft power, a power that is founded on trust and is based on its ability to act with integrity. For this power to be sustained, the institution must be one that is raised to a level where even the slightest doubt about its integrity cannot be cast.

The tenure of the current Chief Justice has so far seen more than one controversy now, one regarding the UP Medical Colleges, one concerning the allocation of the judge Loya case and one today with four of the senior-most judges stepping up and saying that there is something wrong with how he is allocating cases.

Today’s events call for introspection on what led to them, what necessitated them and how these institutions will recover from them. The reform of these institutions has to come from within, for an institution is only as good as the people who run it and a democracy is only as good as its institutions. If our country and our institutions have to survive, our judiciary needs to begin to introspect and see how the events in the last few months have affected the public confidence. Remedial measures need to be taken. Far too much is at stake to allow for these remedial measures to be taken by a body politic, for if our most independent of institutions are allowed to be politicised, everything that is worth defending and keeping in our democracy will be lost.

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