New Delhi
In an unusual move, a three-judge Bench headed by Chief Justice of India Dipak Misra on Wednesday dismissed a petition against delay in framing of Memorandum of Procedure being heard by another Bench of the Supreme Court, saying the issue had already been settled by a Constitution Bench in the NJAC case.

“There was no necessity or need to proceed on this issue in view of the Constitution Bench judgment in Advocates On Record case (NJAC case)…We do not intend to keep it pending,” the CJI’s Bench said recalling the October 27 order passed by another Bench of Justice AK Goel and Justice UU Lalit.

Acting on a petition filed by advocate RP Luthra highlighting the inordinate delay that has adversely affected judicial appointments, another Bench of Justice AK Goel and Justice UU Lalit had October 27 issued notice to Attorney General KK Venugopal. It had appointed senior advocate KV Vishwanathan as amicus curiae to assist it and posted the matter for hearing on November 14.

But the CJI chose to transfer the case to his own Bench – which also included Justice AK Sikri and Justice Amitava Roy – advanced the hearing; took it up; and dismissed it.

The development exposes the chasm in the line of thinking among top court judges on ways to deal with the issue of inordinate delay in redrafting of MoP which has been hanging fire since 2015 when a five-judge Constitution Bench declared National Judicial Appointments Commission (NJAC) unconstitutional.

It had revived an admittedly opaque collegium system created by the Supreme Court in 1993 under which judges appoint judges. The Constitution Bench had asked the government to redraft the MoP in consultation with the Supreme Court collegium – a group of top five judges led by the CJI.

While CJI Misra and some other judges held the view that the issue should be dealt with on the administrative side; certain other judges, including Justice Goel and Justice Lalit, wanted it to be taken up on the judicial side in view of the fact that hardly any progress had been made in the last almost two years.

On Wednesday, the court witnessed a drama as Luthra vehemently opposed dismissal of his petition. At one point the Bench asked him not to raise his voice.

Vishwanathan tried to impress upon the Bench to keep the petition pending, saying, “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.”

But the Bench was apparently not convinced. “These are not things we need to hear on the judicial side,” it said. Luthra had challenged the May 1, 2017 order of the Delhi High Court which rejected his petition that questioned the appointments made to various high courts on the ground that the MoP had not been finalised.

While agreeing with the High Court’s decision to reject his petition against judicial appointments, Justice Goel and Justice Lalit had noted that there should be no further delay in finalisation of MoP in larger public interest.

It had referred to the July 4, 2017 verdict in Justice CS Karnan contempt case wherein two senior most judges of the Supreme Court – Justice J Chelameswar and Justice Ranjan Gogoi – had emphasised “the need to revisit the process of appointments and to set up a mechanism for corrective measures other than impeachment against conduct of an erring judge”.