New Delhi: On May 2, the Supreme Court’s five-member collegium deferred a decision to reiterate its recommendation elevating the chief justice of the Uttarakhand High Court, K.M. Joseph, to the Supreme Court. On May 4, another bench of the Supreme Court, comprising Justice Madan B. Lokur and Justice Deepak Gupta, questioned the Centre’s inaction in filling pending vacancies at the Manipur, Meghalaya and Tripura high courts and gave 10 days to attorney general K.K. Venugopal, to file the government’s response.
Both developments revolve around the Centre’s scant regard for the recommendations of the collegium; the outcome in each instance, however, offers an interesting insight into the dynamics at play in the collegium.
On the question of Justice K.M. Joseph’s elevation to the Supreme Court, it was reasonable to expect that Justice Kurian Joseph – who had issued a statement to the press on the subject – and the other three senior judges, namely Justices J. Chelameswar, Ranjan Gogoi, and Madan B. Lokur, must have tried to persuade Chief Justice Dipak Misra to reiterate the collegium’s January recommendation so that it is binding on the Centre.
However, much water has flown down the Yamuna since January 10, when the collegium unanimously resolved to recommend Justice K.M. Joseph. Events since then have only widened the gulf between the CJI and his four senior colleagues in the collegium, although legal compulsions require them to meet and discuss the question of appointment of judges.
The discord over the approach to be adopted was wide in the open: the CJI, as part of the three-judge bench which heard a petition on the Centre’s stand, had observed that the government was within its right to return a recommendation of the collegium for its reconsideration, while Justice Kurian Joseph publicly said that the collegium would reiterate its recommendation, so as to make it binding on the Centre.
The resolution adopted by the collegium on May 2, suggests what might have happened. The agenda on that day included not only the reconsideration of the case of Justice K.M. Joseph, but also a proposal to “consider the names of judges from Calcutta, Rajasthan and Telengana and Andhra Pradesh high courts for elevation as judges of the Supreme Court, in view of the concept of fair representation”.
The addition of the later proposal to the agenda clearly shows that the collegium, at least for the record, acknowledges that its January 10 recommendation restricting the choice to only two appointees, namely Justice K.M. Joseph and Indu Malhotra – when there were six vacancies in the apex court at that time – was perhaps flawed. It is not as if there weren’t a sufficient number of candidates under consideration, which might have forced the collegium to restrict its choice to these two alone.
Obviously, the collegium assumed that the Centre might have reservations over Justice K.M. Joseph, and also perhaps hoped that it would not segregate the names, so as to deny Justice K.M. Joseph the seniority it wanted to confer on him within the Supreme Court. Including other eligible candidates from the zone of consideration, along with them, might have resulted in these two being placed lower in seniority.
Justice K.M. Joseph ranks 42 in the all-India seniority list of high court judges, and is apparently junior to all other eligible candidates in the consideration zone. Justice Indu Malhotra, being elevated from the bar, cannot claim seniority over other judges, if sworn-in on the same day like her but elevated from the high courts, as required by convention.
CJI played hard ball on May 2
The Centre’s decision to return one of the names for the collegium’s reconsideration put a spoke in the wheel of the ‘Chelameswar Four’ within the collegium. Now, the four seem to have developed fresh doubts about whether the speedy reiteration of Justice K.M. Joseph’s name – before recommending fresh names – could force the Centre’s hands.
With Chief Justice Misra now seeing merit in the Centre’s concept of giving the high courts “fair representation” in the Supreme Court, a unanimous reiteration of the recommendation on Justice K.M. Joseph now appeared impossible. And in the absence of a unanimous reiteration, a recommendation on Justice K.M. Joseph would not be binding on the government. The Chelameswar Four, therefore, evidently saw merit in posing a united front within the collegium and accommodated the CJI’s insistence on discussing the concept of “fair representation” to high courts which are not currently represented in the Supreme Court.
Recommending eligible candidates from Calcutta, Rajasthan and Telangana, along with Justice K.M. Joseph means the collegium has addressed a concern the Centre had raised while reiterating his name. One might even say the collegium is calling the Centre’s bluff. However, it remains to be seen whether the collegium, while reiterating Justice K.M.Joseph’s name, places him above other names, so as to protect his seniority within the Supreme Court, as envisaged by its earlier recommendation. In any case, the resolution suggests that the CJI played hard ball in the May 2 meeting, while the other four had no option but to acquiesce.
It is settled law that judges of the Supreme Court can only be appointed on the basis of a unanimous recommendation of the collegium. The president, i.e. the government, is entitled to turn down a 4-1 or 3-2 recommendation.
In the Second Judges case, it was held:
“In exceptional cases alone, for stated strong cogent reasons, disclosed to the CJI, indicating that the recommended is not suitable for appointment, that appointment recommended by the CJI may not be made. However, if the stated reasons are not accepted by the CJI and the other judges of the Supreme Court who have been consulted in the matter, on reiteration of the recommendation by the CJI, the appointment should be made as a healthy convention.”
The above paragraph clearly suggests that the Centre can return a recommendation for reconsideration, only if the individual is not found suitable, and not for any other reason. Interestingly, the Centre did not return Justice K.M. Joseph’s recommendation because of doubts about his “suitability” for the post of Supreme Court judge but on grounds of “fair representation”. Raising extraneous grounds for reconsideration of a recommendation of the collegium flies in the face of the Second Judges case judgment. Lack of seniority in the all-India list of high court judges, absence of representation to some states and even to Scheduled Castes and Scheduled Tribes in the Supreme Court do not make a candidate “not suitable”, if he is otherwise found suitable by the collegium.
Although the law on the question is clearly against the Centre, the collegium appears to be proceeding with caution because any semblance of division within its ranks on the issue may result in the government rejecting Justice K.M. Joseph’s name.
Paragraph 25 of the Supreme Court’s judgment in the Third Judges case says:
“It is, we think, reasonable to expect that the collegium would make its recommendations based on a consensus. Should that not happen, it must be remembered that no one can be appointed to the Supreme Court unless his appointment is in conformity with the opinion of the CJI. The question that remains is: what is the position when the CJI is in a minority and the majority of the collegium disfavour the appointment of a particular person? The majority judgment in the second Judges case has said that if “the final opinion of the CJI is contrary to the opinion of the senior Judges consulted by the CJI and the senior Judges are of the view that the recommended is unsuitable for stated reason, which are accepted by the President, then the non-appointment of the candidate recommended by the CJI would be permissible.”
“This is delicately put, having regard to the high status of the president, and implies that if the majority of the collegiums is against the appointment of a particular person, that person shall not be appointed, and we think that this is what must invariably happen. We hasten to add that we cannot easily visualise a contingency of this nature; we have little doubt that if even two of the judges forming the collegium express strong views, for good reasons, that are adverse to the appointment of a particular person, the CJI would not press for such appointment.”
In Paragraph 26, the judgment reads:
“A re-constituted collegium, due to the retirement of some member/s of the original collegium, can reconsider a name recommended earlier. This reconstituted collegium can consider whether the recommendation should be withdrawn or reiterated. It is only if it is unanimously reiterated that the appointment must be made. Having regard to the objective of securing the best available men (sic) for the Supreme Court, it is imperative that the number of judges of the Supreme Court who consider the reasons for non-appointment should be as large as the number that had made the particular recommendation.”
Paragraph 27 of the judgment reads:
“The CJI may, in his discretion, bring to the knowledge of the person recommended the reasons disclosed by the Centre for his non-appointment and ask for his response thereto. The response, if asked for and made, should be considered by the collegium before it withdraws or reiterates the recommendation.”
Therefore, the collegium perhaps would seek the response of Justice K.M. Joseph to the Centre’s reservations over his appointment, before deciding whether to reiterate its earlier recommendation.
Spat with the AG on Friday
With the controversy over Justice K.M. Joseph’s non-appointment by the Centre casting its shadow, the bench of Justice Lokur and Justice Deepak Gupta, chose the occasion of a petition by a litigant seeking transfer of his appeal from the Manipur high court to Gauhati high court, to vent its exasperation over the government’s lack of urgency in making judicial appointments. The petitioner in this case sought the transfer because he wished to appeal the judgment of a single judge in the high court, which currently has only two judges, as against the sanctioned strength of seven.
While hearing the case, the bench of Justice Lokur and Justice Deepak Gupta, observed on April 17:
“A situation such as the present not only inconveniences the litigants, but also creates attendant problems, including difficulties in communication with lawyers, payment of fees to lawyers outside Manipur. What is worse is that litigants have to come all the way to this court for relief, entailing further expenses and other issues.”
The bench was concerned that the Gauhati high court is not burdened with unnecessary litigation. The bench noted that in the high court of Meghalaya, there was only one judge against the sanctioned strength of four, while in the high court of Tripura, there were only two judges against the sanctioned strength of four. “The situation , particularly in the North East is critical”, the bench had observed in its order.
Even as the concern of the bench is understandable, any effort to judicially deal with the Centre’s defiance of the collegium’s recommendations is not likely to find favour with Chief Justice Mishra, who had earlier recalled a similar attempt by another bench (of Justice Adarsh Kumar Goel and Justice Uday Umesh Lalit), on the ground that it is an administrative issue, to be dealt by the CJI in his administrative capacity. But the fact that an administrative solution to the stand-off between the Centre and the collegium has been elusive all these months, has not yet dawned on the CJI.