The Centre on Wednesday cleared the appointment of senior advocate Indu Malhotra alone for appointment as a Supreme Court judge out of the two names recommended by the collegium three months ago. The Narendra Modi government has indicated that it has won the present round of battle for supremacy between itself and the collegium. Malhotra will be sworn in on Friday, and she is the first woman to be elevated directly from the bar.
The other name, that of Chief Justice of the Uttarakhand high court Justice K.M. Joseph, has been sent back on Thursday, with the Centre asking the collegium to “reconsider”.
The bench of Chief Justice Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud has on Thursday observed that the Centre is entitled to seek reconsideration of a recommendation, even while refusing to stay the warrant of appointment of Malhotra, as sought by senior advocate Indira Jaising.
But the issue is not just reconsideration of a recommendation. The concern is over the Centre’s attempt to use the reconsideration option to deny Justice Joseph seniority within the Supreme Court by clearing Malhotra’s appointment first. Seniority within the Supreme Court matters for constituting benches, and even for elevation as the CJI. If a precedent like this is allowed, then the Centre could play havoc with the chances of a judge to become the CJI, in terms of the seniority.
If the collegium is indeed serious about this, then it should reiterate its recommendation to appoint Justice Joseph today itself, so that he could be sworn-in tomorrow, along with Malhotra. Any delay in the collegium’s meeting on the issue would only vindicate the concerns of four senior judges of the court.
Indeed, keeping a recommended candidate on hold when faced with a hostile collegium, which is determined to reiterate the recommendation if it’s returned, appears to be the only alternative for the Centre, which is equally determined to block that appointment. If the collegium submits the same name again, it becomes binding on the Centre to appoint the person. But with the Centre inclined to ignore even a reiterated recommendation of the collegium in the recent past, it is not at all certain whether the collegium can have its say finally.
That the Centre took nearly three months to process Malhotra’s appointment can be attributed to its dilemma on whether it can break convention, which required it not to delink her from Justice Joseph, when the collegium had recommended both together. That there has been no controversy over Malhotra, and she had to wait endlessly for no fault of her own, ultimately prevailed over the Centre. She resumed her practice in the Supreme Court, as it was not clear how long she might have to wait for the appointment order. She had earlier stopped her practice, in deference to a tradition which requires lawyers who have been recommended for appointment as judges to do so in the period before their actual appointment.
The Centre appears to have delinked her appointment from that of Justice Joseph, knowing fully well that this will open the doors to a fresh controversy. The Centre’s reservations over Justice Joseph are well known, and the official reason – that there are more senior contenders than him – is unconvincing.
Justice Joseph had quashed the Centre’s imposition of president’s rule in Uttarakhand in 2016, dismissing the Congress government ruling the state then, as a mala fide exercise of power. The Centre has since then not acted on the collegium’s recommendation to transfer Justice Joseph to Hyderabad, which he had requested for health reasons. Later, two days before the four judges’ press conference on January 12, the collegium recommended his name, along with that of Malhotra, for elevation to the Supreme Court. The collegium had then recorded reasons as to why it found Justice Joseph more outstanding than others, despite his lack of seniority.
The Centre’s inaction on Justice Joseph came in for scathing criticism from Justice J. Chelameswar, a member of the collegium and the senior-most judge after Chief Justice of India Dipak Misra. He made this criticism clear in his recent letter to the CJI, copied to all judges of the Supreme Court.
Justice Chelameswar remarked that the Centre sitting over the collegium’s recommendations has become the new norm, while acting on its proposals is an exception. Justice Chelameswar, Justice Ranjan Gogoi, Justice Madan B. Lokur and Justice Kurian Joseph have all urged the CJI to hold a full court meeting on the issue, so that the court could collectively deliberate and respond suitably to the Centre’s intransigence.
But in the dithering of the CJI Misra over the appropriate steps to be taken as a response to the institutional crisis, the Centre appears to find a fertile ground to test waters. First, on April 19, the Centre extended the tenure of Justice Ramendra Jain as additional judge of Punjab and Haryana high court, although the collegium had clearly recommended that he be made a permanent judge of the same high court. Indeed, the Centre’s action was clearly in violation of the Supreme Court’s judgment in the second judges case (1993), which had held that once the collegium reiterates a recommendation after reconsideration, the Centre is bound by it.
The collegium’s initial recommendation on Justice Jain was on March 26. The Centre returned the file for reconsideration on the ground that Justice Jain was due to be transferred to the Karnataka high court. In July 2017 itself, the collegium had recorded special reasons as to why Justice Jain should continue to serve in the Punjab and Haryana high court. Therefore, the collegium reiterated its recommendation, assuming that it would be binding on the Centre. This clearly makes a case for contempt of court, and the court must take judicial note of this and issue notice to the Centre suo motu. That there have been at least four similar violations of the collegium’s recommendations in the past, in the case of other judges, must convince the collegium that any further delay in its response would only encourage the Centre to ignore its recommendations with impunity.
But the CJI’s response to the urgings of his colleagues for a judicial response to the crisis has been that it is an administrative issue, and as the head of the entire judicial family across the country, he knows how to deal with it administratively.
Indeed, this was the ground which former Attorney General Mukul Rohatgi invoked when at one time, then Chief Justice T.S. Thakur was inclined to deal with the Centre’s confrontation with the collegium judicially. Chief Justice Thakur, on the verge of his retirement, had no option but to leave the issue to be decided by his successors.
Unfortunately, Chief Justice J.S. Khehar, who succeeded him, too had a limited tenure of eight months and did not think it appropriate to find a judicial solution to the crisis. It was Justice Khehar’s reluctance to deal with memorandum of procedure (MoP) judicially that led to the ceding of responsibility to finalise it to the Centre, when the constitution bench headed by him struck down the National Judicial Appointments Commission (NJAC) and sought to reform the collegium’s functioning in 2015. Since then, there has been a stalemate over the finalisation of the revised MoP, according to the guidelines laid down by the constitution bench, with the Centre insisting on inclusion of certain clauses in the MoP which would give it primacy over the judiciary in the finalisation of appointments.
Chief Justice Misra’s tenure so far – marked by several controversies – has not been very inspiring to suggest that a solution to the Centre’s open defiance of the collegium may be in sight. The recent verdict of the three-judge bench headed by Chief Justice Misra rejecting the plea for an independent probe into Judge Loya’s death in 2014, followed by chairman of the Rajya Sabha Vice-President M.Venkaiah Naidu’s questionable refusal to admit an impeachment motion submitted by the 64 Rajya Sabha MPs, only confirms what one heard during the Emergency: when asked to bend by the executive, institutions may begin to crawl if they are led by persons whose commitment to their independence and integrity can only be described as superficial.