New Delhi: Describing the Centre’s move to stonewall the elevation of Uttarakhand high court chief justice Justice K.M. Joseph to the Supreme Court as “unfortunate”, several former chief justices and other senior judges have demanded that Chief Justice of India Dipak Misra urgently convene a collegium meeting to address the issue.
The Centre has notified the appointment of senior advocate Indu Malhotra as a judge in the apex court on the basis of the collegium’s recommendation, while raising objections to Justice Joseph’s name.
The Indian Express has noted how the judges, while expressing concern at the development, have also wondered why Justice Misra had not initiated deliberations on the issue with the Centre, as it sat over the recommendations of the collegium for over three months. Former Chief Justice R.M. Lodha said, “By simply sitting over the file for weeks and then picking one and not the other, a whole new succession comes into play. This is interference in the judiciary, apart from, of course, rejecting names that the government doesn’t find favourable.”
Most of the judges raising questions were unequivocal in their view that the denial of elevation to Justice Joseph had much to do with his striking down the imposition of president’s rule in Uttarakhand in 2016.
Giving a detailed account of the powers of the judiciary when it comes to such infringement by the executive, Lodha was quoted by the newspaper as saying: “The Chief Justice of India, in such a situation, should immediately call a meeting of the collegium and take up the matter with the government. If the reiteration must be done, it must happen immediately.” He also stressed that “the Chief Justice cannot sit over the file either, indefinitely, as can’t the government.”
He also spelt out that the Memorandum of Procedure while laying out the terms of engagement between the Centre and the judiciary does not talk of segregation but the “settled convention is that the government cannot segregate the names”.
Recalling how during his own term in 2014, one of the four names had been segregated by the law ministry, he said: “The law ministry, without my knowledge or consent, when I was out of the country, segregated four recommendations of the collegium and had certain problems with (the proposal to elevate) Gopal Subramanium and did not appoint him. This was very wrong. I wrote to the Law Minister on June 30, immediately upon my return that it was wrong and should not happen again in the future, that is, be done with any Chief Justice, henceforth.” But, he said, the matter could not reach its “logical conclusion” as Subramanium withdrew his name.
Like Justice Lodha, who said “it was very clear” why Justice Joseph’s “elevation is facing resistance,” several former judges too expressed their concern at the approach. Former chief justice of Delhi high court and former chairperson of the Law Commission, Justice A.P. Shah, was quoted by the newspaper as saying: “Clearly the reason (Justice Joseph’s file was rejected) is his judgment against the Centre in 2016. The points raised about his so-called seniority are not relevant and he is the most suitable person for the job. As far as representation from Kerala is concerned, Justice Kurian Joseph, the only other Kerala judge will retire in a few months.”
Former CJI T.S. Thakur too told the newspaper that the decision to segregate Malhotra and Justice Joseph’s recommendations was “unfortunate”.
According to the Indian Express, two other former chief justices and four other former judges of the Supreme Court, on the condition of anonymity, also said they were seriously concerned that CJI Misra had not spoken to Centre about sitting on the recommendations.
Senior jurist Fali Nariman has also been quoted as saying that the collegium’s decisions on judges’ appointments should be taken as the final. A contrary decision by the government should be considered malafide, he argued.
Incidentally, while law minister Ravi Shankar Prasad is learnt to have written a letter to Justice Misra to seek the segregation, one of the key arguments against elevation of Justice Joseph was that he represents Kerala, a relatively small state from where there was already a judge in the Supreme Court and two chief justices of high courts. This apart, the Centre said he was junior to 41 high court judges and there was no SC/ST judge in the Supreme Court.
In response to these arguments, it has been pointed out by the same yardstick, the elevation of two judges from Bombay high court in May 2016 and two from Karnataka high court in February 2017 should not have taken place as other states were underrepresented then too.
Moreover, it has been pointed out that even after Justice Joseph’s elevation, there would still have been four vacant posts in the apex court, which could have been filled with judges from the SC/ST category.
It has also been argued that the Centre’s regional representation logic is not on a firm footing because at present too the representation of judges in the Supreme Court is not proportional. While out of the 25 judges, three each are from Delhi high court and Bombay high court; two each are from the Allahabad, Madhya Pradesh, Karnataka and Andhra Pradesh high courts; and one each from the high courts of Kerala, Odisha, Gauhati, Punjab & Haryana, Madras, Patna and Himachal Pradesh.
On the other hand, as many as ten high courts have no representation in the Supreme Court. These include Calcutta, Chhattisgarh, Gujarat, Rajasthan, Jharkhand, J&K, Uttarakhand, Sikkim, Manipur and Meghalaya.
Despite this, law minister Prasad had noted in his letter to Justice Misra: “At this stage, elevation of one more judge from Kerala HC does not appear to be justified as it does not address the legitimate claims of chief justices and judges of many other HCs and forestalls the claim of other senior chief justices and judges.”
The argument of keeping the slot for an SC/ST judge too, it has been pointed out, does not hold water since six more judges are due to retire during this year.