Deepening its standoff with the judiciary, the government Thursday returned for reconsideration the Collegium’s recommendation to elevate Uttarakhand Chief Justice K M Joseph to the Supreme Court even as it notified the appointment of senior advocate Indu Malhotra as a judge of the apex court. Her name had been recommended along with that of Justice Joseph on January 10.
In a letter to Chief Justice of India Dipak Misra, Union Law Minister Ravi Shankar Prasad underlined that “this proposal for reconsideration of the case of Shri Justice K M Joseph has the approval of the Hon’ble President and the Hon’ble Prime Minister” and listed reasons why his appointment “at this stage does not appear to be appropriate” — Justice Joseph is at serial number 42 in the All India High Court Judges’ Seniority List; his parent High Court of Kerala has “adequate representation in the Supreme Court”; several High Courts are “not represented in the Supreme Court at present”; and, “there is no representation of Scheduled Caste/Scheduled Tribe communities in the Supreme Court since long”.
Until late Thursday night, CJI Misra had not informed other members of the Collegium about the government’s decision which was communicated by Prasad in the morning.
There was no indication if and when a meeting of the Collegium would be called by the CJI to discuss the matter — besides CJI Misra, the Collegium comprises Justices Jasti Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph.
Sources said the established practice is to call a meeting of the Collegium immediately if the government returns a recommendation. Reiteration of a name by the Collegium makes it incumbent upon the government to issue a warrant for the appointment.
On January 10, the Collegium recommended that Malhotra and Justice Joseph be elevated as judges of the apex court. The government took its time in processing the file, giving rise to speculation that it is not in favour of elevating Justice Joseph who in 2016 struck down imposition of President’s rule in Uttarakhand.
With matters precipitating and four judges in the Collegium questioning the delay over the recommendation and urging the CJI to call a meeting of the full court, the government moved and delinked the proposals. It approved Malhotra’s file and returned Justice Joseph’s file for reconsideration.
In its letter, the government said: “In the All India High Court Judges’ Seniority List, Shri Justice K M Joseph is placed at serial number 42. There are presently eleven Chief Justices of various High Courts who are senior to him in All India High Court Judges’ Seniority List.”
“The High Courts, namely Calcutta, Chhattisgarh, Gujarat, Rajasthan, Jharkhand, Jammu & Kashmir, Uttarakhand and some smaller High Courts namely Sikkim, Manipur, Meghalaya are not represented in the Supreme Court at present.”
“Shri Justice K M Joseph’s parent High Court is the Kerala High Court. If he is to be appointed as Judge of the Supreme Court, the Kerala High Court — a comparatively small High Court — would have two Judges from the same parent High Court in the Supreme Court.”
“It may also be relevant to mention here that there is no representation of Scheduled Caste/Scheduled Tribe communities in the Supreme Court since long.”
The government said the Kerala High Court with a sanctioned strength of 47 judges “has received adequate representation in the Supreme Court and as Chief Justices of High Courts” and if one more judge is chosen from there, the Supreme Court will have two judges from Kerala. Justice Kurian Joseph of the Supreme Court is from Kerala High Court.
The government pointed out that there were three other judges from Kerala holding the office of Chief Justice in the High Courts of Uttarakhand (Justice K M Joseph), Chhattisgarh (Justice T B Radhakrishnan) and Kerala (Justice Antony Dominic).
Elevation of one more judge from the Kerala High Court to Supreme Court “does not appear to be justified as it does not address the legitimate claims of the other Chief Justices and Puisne Judges of many other High Courts and forestalls the claim of other senior Chief Justices and Puisne Judges” and this, the government said, is “not in accordance with the parametres laid down” in the Second Judges’ Case and reiterated in the Third Judges’ Case.
The government said that in view of this, it was “constrained to segregate the recommendations” dated January 10. It said “such segregation of proposals has been done in many cases earlier, which include appointment of judges to various High Courts and also to the Supreme Court in the interest of expeditious action on appointment and filling up of vacancies”.
The government said “the Collegium System is a creation of judicial decision of the Supreme Court”. It said while seniority of judges plays a critical role in them being considered for elevation, such seniority of High Court judges is maintained only at All India level.
“From our records, it is evident that to ensure regional representation, seniority may not have been taken as an important consideration, but in case where the High Court concerned is adequately represented in the Supreme Court and also as Chief Justices of different High Courts, then this consideration cannot be, and should not be, ignored all together to the detriment and prejudice of other senior judges,” the letter stated.