Uncertainty over Justice Joseph’s elevation to SC

Satya Prakash

Tribune News Service

New Delhi, June 20

Uncertainty looms large over the possible elevation of Uttarakhand High Court Chief Justice KM Joseph, which has turned out to be bone of contention between the government and the judiciary, as there was no collegium meeting scheduled before the retirement of Justice J Chelameswar on June 22.

“Only two of the top five judges are in Delhi and there is no information about any collegium meeting before June 22,” a source privy to the process told The Tribune.

Justice Joseph’s elevation to the top court has been held up despite “in principle” agreement among the top five judges who constitute the collegium that decide on appointment of judges of the Supreme Court and high courts.

The collegium led by Chief Justice of India Dipak Misra had thrice in a row failed to take a final call on the controversial proposal to elevate Justice Joseph to the top court despite unanimously agreeing “in principle” to reiterate his name which was returned by the government for reconsideration.

Under the law on judicial appointments laid down by Constitution Bench verdicts of the Supreme Court, the government can ask the collegium to reconsider its recommendation; but if the latter reiterates its recommendation it would be binding on the former.

Things are likely to get complicated as after Justice Chelameswar’s retirement the composition of the collegium will change and Justice AK Sikri will replace him.

Led by Chief Justice of India Dipak Misra, the top five judges of the Supreme Court met had last met on May 16 but could not decide to send Justice Joseph’s name back to the government as they failed to agree on other names to be sent along with the Uttarakhand Chief Justice to fill the existing seven vacancies. Earlier, the collegium had met on May 2 and May 11 and decided to defer a decision on Justice Joseph’s appointment.

Four more Supreme Court judges are due to retire by the end of this year. After Justice Chelameswar’s retirement on June 22, Justice AK Goel will retire on July 6. Justice Kurian Joseph and Justice Madan B Lokur, both collegium members, are due to retire in November and December, respectively.

Other names that were considered for elevation to the top court on May 16 included Madras High Court Chief Justice Indira Banerjee (parent HC Calcutta), Gujarat High Court Chief Justice R Subhash Reddy (parent HC Telangana and Andhra Pradesh) and Karnataka High Court Chief Justice Dinesh Maheshwari (parent HC Rajasthan). Names of some other chief justices were also under consideration “in view of the concept of fair representation”, sources said.

While agreeing “in principle” on Justice Joseph’s elevation, the collegium members had on May 11 decided to meet on May 16 as they felt “the said reiteration (of Justice KM Joseph’s name) should also be accompanied by the recommendation of the names of Chief Justices of (other) High Courts for elevation as Judges of the Supreme Court, for which detailed discussion is required.”

Govt, judiciary lock horns over seniority issue

• The government had in April returned Justice Joseph’s name to the collegium raising the issue of fair regional representation. It had questioned his seniority, saying he stood at serial No. 45 in the combined seniority of high court judges on all-India basis. There were 11 high court chief justices senior to him, it had said
• Joseph was appointed a permanent judge of the Kerala High Court on October 14, 2004 and went on to become Uttarakhand High Court Chief Justice on July 31, 2014. He headed a Bench that quashed the Centre’s decision to impose President’s rule in Uttarakhand in 2016
• His name was recommended by the collegium along with that of senior counsel Indu Malhotra in January this year. But the government sent back his file to the collegium and went ahead with appointment of Malhotra who took oath as a Supreme Court Judge on April 27