Someone always have to act when the power given to a person starts jeopardizing the interest of people and justice. The recent case of Luthra which led the Supreme Court Judges to take a stand against the actions taken by Chief Justice Misra and forces everyone to raise a question upon the judicial machinery which is deemed to be the most powerful and independent one in the country. The recent situation brought into focus the present method of selection of judges of the Supreme Court and High Courts by the Supreme Court collegium.Recently the situation in the apex court was “not in order” and many “less than desirable” things have taken place. The controversy started when 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. The cases were posted not to the senior judges but to the judges lower down the line which the judges don’t agree with. The chief justice was expected to restore the institution back to its old (glory). The letter also alleges that matters were being assigned by Chief Justice of the Supreme Court to benches of their preference.The method of selection of judges by a collegium of Supreme Court judges finds no place in the Constitution. The Constitution confers the power of appointment of judges on the President of India i.e. the Government of India to be made in consultation with the Chief Justice of India and other judges of the Supreme Court and the High Courts. How then did a collegium of judges of the Supreme Court come to exist and come to possess this power. A 2015 decision by five judges of the Supreme Court in Supreme Court Advocates on Record Association v Union of India & Anr unveils the chain of cases where the Supreme Court 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). The MOP is a document put together by the Union government and then shared with the apex court. It determines the procedure of appointment of judges to the higher judiciary. 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. Since the MOP submission in March, the government has not responded to the comments of the Supreme Court. The four judges have questioned Misra for failing to move ahead with the MOP.Another case 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 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.”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. 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. This case led to so many queries and eventually it 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. The letter written by four senior-most judges of apex court — Justices J Chelameswar, Ranjan Gogoi, M B 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 8 November 2017, a three-judge bench, comprising Misra and Justices AK Sikri and Amitava Roy recalled the 27 October, 2017 order by Goel and Lalit saying that “these are not matters to be taken up on the judicial side like this”. The bench, however, did not explain why it should not be pursued on the judicial side.When we point over the early years, 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 got multiple benches. At present matters are heard by benches of the court comprising of one, two, three, five, seven judges or more judges depending on the nature of the case. 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. The Chief Justice in this context not only hold the judicial powers but also holds powers on the administrative side which 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 which again acts as a blow to fire.The main concern of the 4 judges is “selective assignment of cases to preferred judges” and that “sensitive cases were being allotted to junior judges” which is seen as an arbitrary and irrational action taken by the one who holds the power. Also, 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. This untrammelled executive power which rests in the Chief Justice is neither subject to any review or known restrictions. The judges further showed concern about the need to consider the prayer that there should be no further delay in finalisation of MoP in larger public interest. 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. After the issue raised by the judges of Supreme Court everyone is waiting in order to get the answers of their questions that 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? It was also stated that the collegium system for the appointment of judges was “opaque” and needed “transparency” also, “primacy of the judiciary” in the appointment of judges, a basic feature of the Constitution was flawed.Maintaining the sanctity of the court 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 but the same was not adhered.ConclusionThere 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. The recent controversy triggered by four of our senior-most judges coming out in open brings to surface the often ignored aspect of administrative or executive powers of the appellate judiciary which may cause serious effects and create doubts on the minds of public at large therefore should be considered as a serious issue and should be looked upon in depth. To be fair to the present collegium of the Supreme Court it has inherited a system with the limitations given to them by the two judgments of the Supreme Court. With the best effort and good faith the collegium suffers from institutional handicaps in its selection. According to the judges there have been instances where a case having far-reaching consequences for the nation and the institution have been assigned by the chief justice selectively to the benches ‘of their preference’ without any rational basis for such assignment. This must be guarded against at all costs. The steps taken by the supreme court judges for the benefit of all is appreciable as failure to communicate their concerns could jeopardize the institution of the Supreme Court and thereby of democracy.