Justice Joseph''s elevation not ''appropriate'' at this stage: Govt to SC collegium

Satya Prakash

Tribune News Service

New Delhi, April 26

The government on Thursday asked the Supreme Court Collegium to reconsider its recommendation to elevate Uttarakhand High Court Chief Justice KM Joseph to the top court, saying it may not be "appropriate" at this stage.

If the Collegium reiterates its recommendation, it would be binding on the government and it will have to appoint Justice Joseph as a Supreme Court Judge.

In a letter to the Chief Justice of India Dipak Misra, Law Minister Ravi Shankar Prasad said in the all-India high court judges' seniority list, Justice Joseph was at serial number 42 and there were 11 chief justices of high courts who were senior to him. The decision had approval of the President and Prime Minister, Prasad wrote. It also pointed out that SCs/STs had no representation in the top court since long.

It would not be fair and justified to other more senior, suitable and deserving Chief Justices and senior judges of various high courts, Prasad wrote.

The government's decision to send back Justice Joseph's name coincided with the official notification for appointment of senior advocate Indu Malhotra as a judge of the Supreme Court.

Currently, the Supreme Court is functioning with only 26 judges against a sanctioned strength of 31 judges. Malhotra's appointment will take the number of judges in the top court to 27.

Won't stay appointment of Indu Malhotra as SC judge

Within hours, lawyers led by senior counsel Indira Jaising moved the Supreme Court seeking stay on the appointment of Malhotra who is expected to take oath on Friday.

However, a three-judge Bench headed by CJI Misra refused to stay Malhotra's appointment, terming it "unthinkable".

"What kind of prayer is this? It is unthinkable, unimaginable, inconceivable and never heard of," the Bench, which also included Justice AM Khanwilkar and Justice DY Chandrachud, told senior advocate Indira Jaising.

"Is it a demolition matter or a question of personal liberty? There is no question of staying the warrant of appointment," it said.

Malhotra's name was recommended by the collegium in January along with that of Justice Joseph for appointment as SC judges but the government chose to segregate her name for elevation while sending back the Uttarakhand HC Chief Justice's name to the Collegium for reconsideration.

Accusing the government of cherry picking, Jaising said the government withheld Justice Joseph's appointment because he had delivered an "unpalatable" verdict with regard to President' rule in Uttarakhand.

But the Bench said the government was well within its rights in sending back Collegium's recommendation.

"As per Constitution Bench decisions, the government can send the file [Justice Joseph's] back for reconsideration... when they send it back, we (top court's Collegium) will consider it appropriately," the Bench told Jaising.

The Bench told Jaising that her prayer was problematic. Often the collegium recommended 30-35 names for bigger high courts and the government withheld a few while going ahead with appointment of the rest, it pointed out.

However, it said it was ready to consider the larger issue and the petition would be taken up in due course.

SCBA president Vikas Singh expressed concern over the delay in appointment of Justice Joseph, saying the government's interference was "definitely uncalled for".

The latest development comes within days of two senior judges of the Supreme Court, Justice Ranjan Gogoi and Justice Madan B Lokur urging CJI Misra to hold a Full Court to discuss institutional issues confronting the top court. 

Two other senior judges Justice J Chelameswar Justice Kurian Joseph had demanded setting up a Bench of seven senior-most judges to deal with institutional issues, including judicial appointments. 

The issue of appointment of judges in the Supreme Court and high courts has been in the news since the top court struck down the National Judicial Appointments Commission Act in October 2015.

While the government and the judiciary indulged in slugfest, vacancies in various high courts rose to the highest level.