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Procedure not Privilege, Assigning Cases in the SC Roster Analysing Issues Raised in the Letter of Four Judges of the SC Collegium

12, Jan 2018 | Shilpa Jajuda and Himani Doot
#supreme-court

Four Judges of Supreme Court, J Chelameshwar, J Ranjan Gogoi, J Madan B. Lokur and J Kurian Joseph wrote a letter to the Chief Justice of India addressing their concern about the way allocation of few cases has been done by the Hon’ble Justice of India. In the letter they have said the convention of recognizing the privilege of the CJI to form the roster and assign the cases is only devised for a disciplined and efficient working of the court and is not based on any superior authority, legal or factual of the Chief Justice over his colleagues. Also, it is too well settled in the jurisprudence of this country that the Chief Justice is only the first among the equals- nothing more and nothing less.

 

The learned judges further wrote that in the matter of determination of the roster there are well-settled principles to guide the CJI just like there are rules guiding the strength of the bench which is required to deal with a particular case or the composition thereof. Similarly, another principle of a multi membered judicial body is that they will not pronounce upon matters which ought to be heard by the appropriate benches, both composition wise and strength wise with due regard to the roster fixed. Further, any departure from these two-set principles would lead to chaos and would lead to unpleasant and undesirable consequences of the creating doubt in the body politic about the integrity of the institution.

In the letter they have alleged that off late the above-mentioned twin rules have not been strictly adhered to. They accused the Chief Justice India of assigning cases that have far-reaching consequences for the nation and the institution to benches ‘of their preference’ without any rational basis for such assignment.They warned the CJI, “this must be guarded against at all costs.” “We are not mentioning the details only to avoid embarrassing the institution but note that such departures have already damaged the image of the institution to some extent”, the concerned judges wrote.

Further, they mentioned that in this context they want to address the attention of Chief Justice towards the order dated October 27, 2017 in the R.P. Luthra vs. Union of India which held that there should be no further delay in finalising the Memorandum of Procedure in the larger public interest. They wrote, when the Memorandum of Procedure was a matter of a decision of a Constitutional bench of Supreme Court in Supreme Court Advocates-on-record Association and Anr. v Union of India [(2016) 5 SCC 1] then it is difficult to understand how any other Bench of the Supreme Court could have dealt with the matter.

They wrote that leaving this particular case aside for a moment, when discussions were held by the collegium of five judges (including the current CJI) and the Memorandum of Procedure was finalised and sent by the then Hon’ble Chief Justice of India to the Government of India in March 2017.  Considering the Government of India did not respond and on the basis of order of the Hon’ble court Supreme Court Advocates-on-record Association and Anr. v Union of India [ (2016) 5 SCC 1] such silence means that the Memorandum of Procedure has been accepted. Therefore, there was no occasion for the bench to make any observation with regards to the finalisation of the Memorandum of Procedure or that, this particular issue cannot linger on for an indefinite period.

On July 4, 2017, a bench of seven judges decided In Re, Hon’ble Shri Justice. C.S Karnan [(2017) 1 SCC 1(referred to in R.P. Luthra), in which two of the judges observed that it is necessary to reconsider the process of appointment of judges and to set up a systematic machinery for corrective measures other than impeachment. None of the seven judges made any observation with regard to Memorandum of Procedure.

They wrote that 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 Constitutional Bench. They warned the CJI to take this matter with serious concern and said the CJI is duty bound to rectify the situation and take appropriate remedial measures after a full discussion with the Collegium and at a later stage, if required, with other Hon’ble Judges.

Finally, they have ended the letter by writing that once the issue arising from the order dated October 27, 2017 in R.P. Luthra vs. Union of India is adequately dealt with by the CJI, then only they will discuss other matter with the CJI which require to be similarly dealt with.

 

(The writers are fifth year law students of the Jindal Law School)

 

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