A misjudgment two years and three months old

The sight of Senior Advocate Indu Malhotra stepping out of her car was what greeted me yesterday at gate C of the Supreme Court.

Malhotra, whose name was recommended for Supreme Court judgeship, had stopped her law practice in deference to her proposed judgeship.

However, thanks to the Central Government’s defiance to take a decision one way or the other with respect to the file concerning her elevation, Malhotra’s expected judgeship seems to have hit a roadblock.

While it could not be confirmed whether she has withdrawn her consent for judgeship, her presence in Supreme Court is a pointer to the state of things.

Central government refusing to take decision on the files sent by Collegium has become a pattern for the last more than two years.

And it started with a decision, the Supreme Court took on December 16, 2015! A decision, which in the hindsight has turned out to be a gargantuan misjudgment.

On, October 16, 2015, a Constitution Bench of the Supreme Court struck down the National Judicial Appointments Commission as unconstitutional. Subsequently, in what was unprecedented, the court invited suggestions for improving the Collegium system. Based on the submissions of then Attorney General Mukul Rohatgi, the Court on December 16, 2015 passed an order by which it left the task of amending the Memorandum of Procedure (MoP) to the Central government.

The MoP is a document, which sets out the procedure for appointment of judges to High Courts and the Supreme Court. It was first prepared pursuant to the directions of the Supreme Court in the Second Judges case.

Since it is an exercise to be carried out by the government in furtherance of a Supreme Court judgment, it is merely a step for implementation of the Court’s judgment. This was what Attorney General also submitted that day which has been recorded in the Court’s order.

“It was at this stage of our reflection, that the learned Attorney General made an impassioned submission, not in any obstructive manner, but as a matter of faithful assistance, suggesting that we should desist from pursuing the contemplated course of action. In this behalf it was pointed out, that the formulation of the Memorandum of Procedure was an administrative responsibility which fell in the executive domain.

..we were also informed by the Attorney General, that the MoP and amendments therein, had always been prepared by the Government of India in consultation with the President of India and the Chief Justice of India. This practice, we were informed, had been consistently adopted, in consonance with the directions contained in paragraph 478 of the Second Judges case.

In order to allay any fear that may be entertained by any of the stakeholders, it was submitted that the same procedure would be adopted now, if the task was entrusted to the executive. We are in complete agreement with the suggestion of the learned Attorney General.”

However, contrary to the submissions of the Attorney General on December 16, 2015, what the Centre did and continues to do has baffled legal experts and commentators alike.

In what has literally been a tug-of-war between the two wings of the State, the MoP has gone back and forth. The disagreement between the two was pronounced during the tenure of former Chief Justice of India TS Thakur. After his retirement, conflicting reports have been published; Times of India reported that the CJI has agreed to the ‘National Security’ clause, but Indian Express subsequently reported the opposite.

Two years and three months have gone by with the Centre defying the Court and refusing to clear the MoP.

What is, however, baffling is that the Supreme Court has not hauled up the Centre for non-compliance with its December 16 order.

Since, it’s a judicial order, the Court does have the option to recall the said order or initiate contempt of court action against the Central government.

In fact, a case pertaining to the same had come up before a Bench of Justices AK Goel and UU Lalit, which had issued notice to the Attorney General and also sought the assistance of Senior Advocate KV Viswanathan.

“we need to consider the prayer that there should be no further delay in finalization of MOP in larger public interest. Even though no time limit was fixed by this Court for finalization of the MOP, the issue cannot linger on for indefinite period. The order of this Court is dated 16th December, 2015 and thus more than one year and ten months have already gone by”, the Court said.

However, in a strange turn of events Chief Justice of India, exercising his master of roster power got the case listed before a three-judge Bench presided by himself and dismissed the case.

The Bench which, besides Chief Justice Dipak Misra, also comprised Justices AK Sikri and Amitava Roy proceeded to order that “there was no need to proceed” with the matter, in the light of the NJAC judgment.

A vehement plea to the contrary by petitioner RP Luthra was turned down by the Bench.

Amicus Curiae KV Viswanathan also tried to apprise the court of the graveness of the issue but his plea was also brushed aside.

“It is a matter of grave concern. There is a feeling that there is undue delay. The pendency is shocking. Access to justice is a fundamental right”, Viswanathan said.

The Bench, however, made it clear that it was not willing to hear the matter on the judicial side. CJI Misra replied, “No no, these are not things which we need to hear on the judicial side”, before dismissing the case.

While the old MoP is still in place and is expected to govern the current recommendations, the Centre plainly refuses to comply with that too holding up collegium recommendations. Since the MoP does not prescribe any time limit to deal with the recommendations, the Centre seems to have utilised the same to badger the Collegium.

The order of December 2015 cannot be legally faulted with. The fact that MoP has not been finalised even after two years and three months is, however, a telling tale on the omission of the court to get its order implemented. And this is what makes the said order seem like a misjudgment.

In 2014, while hearing the SEBI Sahara case, former Supreme Court judge, Justice KS Radhakrishnan irked by the failure of Subrata Roy to turn up in court despite an order to that effect, had remarked, “The arms of this court are very long. This is the supreme court of the land”.

It is upto the Supreme Court to decide whether to use those long arms or to sit and watch.