SC Collegium again fails to take final call on Justice K M Joseph

Satya Prakash

Tribune News Service

New Delhi, May 16

The Supreme Court Collegium which met here on Wednesday again failed to take a final call on the controversial proposal to elevate Uttarakhand High Court Chief Justice KM Joseph to the top court despite unanimously agreeing “in principle” to reiterate his name.

Led by Chief Justice of India Dipak Misra, the top five judges of the Supreme Court met here after the court hours 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, sources said. Four more SC judges are due to retire this year.

Other names considered for elevation to the top court 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), they said, adding names of some other chief justices were also under consideration “in view of the concept of fair representation”.

This is the third time in a row that the Collegium, which also included Justice J Chelameswar, Justice Ranjan Gogoi, Justice Madan B Lokur and Justice Kurian Joseph, has deferred a decision on the controversial proposal to elevate Justice KM Joseph that has turned out to be bone of contention between the government and the judiciary. 

Earlier, the Collegium had met on May 2 and May 11 and decided to defer a decision on Justice Joseph’s appointment. Unlike the last two occasions, the Collegium’s resolution had not been released on the court’s website.

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.”

The government had last month returned Justice Joseph’s name. It had raised the issue of fair regional representation and 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.

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.

But the Collegium’s failure to reach a final decision on Justice KM Joseph’s elevation to the top court is indicative of lack of unanimity among the top five judges. Things are likey to get more complicated as judges would go on vacation after May 18 and Justice J Chelameswar would retire on June 22. He will be replaced by Justice AK Sikri.