Friday 27 May 2022
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RP Luthra case: Bone of contention in SC judges’ controversy

New Delhi: The four Supreme Court judges, in their letter written to the CJI, referred the case of RP Luthra vs Union of India, which dealt with the ‘Memorandum of Procedure’, to raise questions about the assignment of cases “selectively” to preferred benches without any rationale.

The letter written by four senior-most judges of apex court– Justices J Chelameswar, Ranjan Gogoi, MB Lokur and Kurian Joseph– said “when the MoP was the subject matter of a decision of a Constitution Bench of this court, in Supreme Court Advocates-on-record Association and Anr Vs Union of India, it is difficult to understand as to how any other bench could deal with the matter”.

On 27 October last year, a two- bench of apex court had agreed to examine the issue of in finalisation of Memorandum of Procedure (MoP) for appointments of judges in higher judiciary on judicial side and had sought the response from the General.

It had said, “We need to consider the prayer that there should be no further in finalisation of MoP in larger public interest. Even though no time-limit was fixed by this Court for finalisation of the MOP, the issue cannot linger on for indefinite period.”

RP Luthra, a lawyer himself, had appeared in-person in the case and challenged the appointments made to the higher judiciary in the absence of MoP, which was to be finalised in the wake of National Judicial Appointments Commission (NJAC) verdict.

Striking a dissent note, Justice J Chelameswar, who was part of the five- constitution bench that heard the case, had said that the collegium system for the appointment of judges was “opaque” and needed “transparency”.

He had said in his separate verdict that “primacy of the judiciary” in the appointment of judges was a basic feature of the Constitution and was “empirically flawed.”

The RP Luthra case, however, was later listed before a three- bench headed by CJI Dipak Misra on 8 November last year, which recalled the 27 October order of two-judge bench on examining the issue of in finalisation of MoP.

The three- bench had then said that “these issues cannot be taken up on the judicial side as the law has already been settled by the constitution bench in case”.

The four judges in their letter said, “Any issue with regard to MoP 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.”


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