The SC judge selection row

SN Sahu
Former press secretary to the late KR Narayanan 

The Government of India has asked the Supreme Court Collegium to reconsider its recommendation for the appointment of Mr Justice Joseph, Chief Justice of the Uttarakhand High Court, as judge of the Supreme Court on three grounds. 

1 One is that Justice Joseph is a Keralite and his appointment would not be consistent with the principles of regional diversity as there is already a judge in the SC hailing from the Kerala High Court. Such reasoning is negated by the fact that that there is more than one judge in the SC from the several high courts of states. 

2 Second is that Mr Justice Joseph is not the seniormost judge among high court judges in the country.  

3 Third is that there is deficit of representation of judges from the Scheduled Castes and Scheduled Tribes in the SC and so he should not be elevated. 

All these criteria have never been cited in the past as factors for appointment of judges in the SC. 

When, in 1998, President KR Narayanan wrote in a file concerning the appointment of judges in the SC that representation of social diversity in higher judiciary should be ensured by appointing women candidates and those hailing from the minority communities and Scheduled Castes and Tribes as judges by taking into consideration their merit, he was criticised on the ground that the President was pushing the agenda of reservation in the judiciary. His vision was rejected as a regressive idea. 

Now, 20 years later, the NDA government is asking the SC Collegium to reconsider its recommendation to appoint Mr Justice Joseph as an SC judge on the ground that it is not consistent with fair representation of regional and social diversity. During all these four years of the NDA government never has the issue of appointing the judges of the higher courts based on diversity been invoked by the ruling leadership even as such ideas found place in several recommendations of the department-related Parliamentary Standing Committee. 

It is refreshing to note that the Constitution Committee of the House of Lords of the UK Parliament in its 25th report on judicial appointments submitted in 2012 observed: "A more diverse judiciary would not undermine the quality of our judges and would increase public trust and confidence in the judiciary.” Many other committees of the UK Parliament have of late underlined the point that there must be representation of diversity in law courts and the idea of diversity has been understood by taking into account a number of elements, including disability, sexual orientation, legal profession and social background. 

In the context of the Indian judiciary, it is desirable to make it more diverse. But it is perverse to invoke the same to deny a judge his promotion to the apex judiciary even as he has been recommended by the SC Collegium by taking into account his merit, competence and integrity. The Collegium observes that "Mr Justice KM Joseph, who hails from Kerala High Court and is currently functioning as Chief Justice of Uttarakhand High Court, is more deserving and suitable in all respects than other Chief Justices and senior puisne Judges of High Courts for being appointed as Judges of the Supreme Court of India. While recommending the name of Mr Justice KM Joseph, the Collegium has taken into consideration combined seniority on all-India basis of Chief Justices and senior puisne Judges of High Courts, apart from their merit and integrity. " 

It is alarming that the government is deliberately targeting a highly competent judge in the name of social and regional diversity. Even the President of the Bar Council has come out against this strategy of the government. The revelations made by the four SC judges to the media that there is threat to democracy because of the state of affairs in the apex court assumes greater poignancy in the context of the attacks on judiciary. The President of the Bar Council of India has stated that non-clearance of the name of Mr Justice Joseph for appointment as SC judge is a threat to the independence of judiciary. It is unprecedented that the Bar and some  judges have come out openly against measures to subvert the judiciary. Some eminent jurists have also voiced their concern on the matter and disapproved the grounds on which Justice Joseph's name has been sent back to the Collegium. 

Has the government done it because Mr Justice Joseph, as Chief Justice of the Uttarakhand, pronounced a judgement that imposition of President's rule in Uttarakhand by the NDA government was unconstitutional? It is a form of violence threatening the judiciary and the Republic. 

Reformation of judiciary is a necessity. Mahatma Gandhi said that reformation of judiciary for delivering quick and inexpensive justice to people is a form of non-violence. How to save the judiciary from the gathering crisis of violence is the biggest challenge before the Republic of India.