With indications that the government may consider returning the Collegium’s recommendation to elevate Uttarakhand High Court Chief Justice K M Joseph to the Supreme Court, sources have told The Indian Express that if this happens the Collegium proposes to send the name right back for the issuance of the Presidential warrant.
Justice Joseph’s name was the only one of a judge, forwarded by the Collegium for elevation to the Supreme Court, with the other being that of Indu Malhotra who was elevated directly from the Bar — the first woman to be so recommended.
Sources say that there was a consensus in the Collegium over proposing Justice Joseph’s elevation. In April 2016, Justice Joseph had quashed the Centre’s orders on Presidential rule in the state, deeply embarrassing the NDA government.
Sources said that if the government neither returns the file nor clears it or if it returns it and then sits on it despite the Collegium sending it back, the Collegium is of the view that it will “not send any other names for elevation to the Supreme Court, at least until as long as this Collegium is in place”.
The Collegium consists of the Chief Justice and four seniormost Judges Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph. Its composition will change only in June when Justice Chelameswar retires.
Early in the tenure of this government, the name of senior advocate Gopal Subramaniam, who was being elevated, was returned. As The Indian Express reported today, the government’s argument is that elevating Justice Joseph would mean giving “seniority and regional representation a go-by.”
For, as many as 44 High Court judges are senior to Justice Joseph, 12 of them are Chief Justices of different High Courts.
Some sources say that’s not a convincing argument.
For one, the Collegium system brought into play after the Second Judges ruling of 1993 was meant to be a selection and not a bureaucratic deference to just seniority.
Seniority, sources say, is used “conveniently and inter-changeably, either cited as per initial appointment as a Judge or as a Chief Justice”, as an argument to push or nix names of judges. But after Chief Justice Altamas Kabir, other than Chief Justice M L Dattu, none of the Chief Justices were Judges who were Chief Justices in their Courts or seniormost by that yardstick when elevated.
As far as “regional diversity” goes, sources cite the simultaneous elevation of Justice D Y Chandrachud and Justice A M Khanwilkar (both from Maharashtra) and of Justice S Abdul Nazeer and Justice M M Shantanagoudar simultaneously (both from Karnataka) during the current dispensation and do not recall the government red-flagging “regional diversity” then.
Incidentally, it was shortly after the last meeting of the Collegium on January 10 that the four seniormost judges went public with their grievances against the way the roster of the Supreme Court was being managed and made their letter to the Chief Justice public.