The “very life and existence” of the Supreme Court is under threat and “history will not pardon us,” if the court doesn’t respond to the government’s unprecedented act of sitting on the collegium’s recommendation to elevate a judge and a senior advocate to the apex court, Justice Kurian Joseph has written to Chief Justice of India Dipak Misra.
He was referring to the collegium’s decision in February to recommend the names of senior advocate Indu Malhotra and Justice K M Joseph, Chief Justice of Uttarakhand High Court, for appointment as judges of the Supreme Court.
In a strongly worded appeal, Justice Kurian Joseph said that “it is the first time in the history of this court where nothing is known as to what has happened to a recommendation after three months.” He urged the CJI to establish a bench of seven seniormost judges to suo motu take up the matter of the government sitting on the two names.
If this demand is accepted, it would, effectively, mean an open court hearing by seven seniormost judges of the Supreme Court who could pass orders asking the government to decide on the pending recommendations of the Collegium. They could even ask the government to issue the warrants for appointments of the judges within a stipulated time frame and failure to do so would make the government liable for contempt of court.
Justice Kurian Joseph demanded urgent intervention from the CJI, stating that “if there is no normal delivery on completion of the gestation period, what is urgently done is a CaesarEan section. Unless such a surgical intervention is made at an appropriate time, the child in the womb dies.”
A member of the collegium for recommending names for elevation to the Supreme Court, Justice Joseph, who retires in November this year, warned that “the dignity, honour and respect of this institution is going down day by day since we are not able to take the recommendations for appointment to this Court to their logical conclusion within the normally expected times”.
In his letter, a copy of which has been sent to the other 22 Supreme Court judges, Justice Kurian Joseph wrote that “government owes a duty to take a call on the recommendation as soon as the same is sent from the Collegium. Failure to discharge their duty by sitting over on the recommendations of the Collegium doing nothing, in administrative law, is abuse of power.”
Serving a warning about the independence of the judiciary from the Executive, Justice Joseph — who is a member of the collegium — wrote that “more than anything else, it sends a wrong message which is loud and clear to all Judges down the line not to cause any displeasure to the Executive lest they should suffer. Is this not a threat to the independence of the judiciary?”
It is believed that the Central government is sitting on the name of Justice K M Joseph who had ruled in April 2016 against the Centre in the case of imposing President’s Rule in Uttarakhand.
As reported by The Indian Express, the Law Ministry had sought legal opinion to issue the warrant of appointment only for Indu Malhotra while keeping Justice K M Joseph’s case pending but was advised against it.
The Government can, however, return either one or both recommendations to the Collegium but it would be duty-bound to issue the warrants of appointment if the Collegium reiterates the names.
Headed by CJI Misra, the Collegium currently consists of Justices J Chelameswar, R Gogoi, M Lokur besides Justice Joseph. The four judges had held a press conference on January 12 to publicly release a letter written to the CJI over various issues pertaining to the functioning of the Supreme Court.
Stating that the CJI Misra’s “personal efforts have not been fruitful” on the administrative side, Justice Kurian Joseph asked the CJI that “following the precedent in Justice Karnan’s case, we should take up the matter on the judicial side in a Bench of first seven or more as you please. I mentioned the first seven only because of the mandate of the Full Court in Justice Karnan’s case.”
He added that while Justice Karnan’s case “was a threat to the dignity of the court, the present one is a threat to the very life and existence of the institution”.
Justice C S Karnan was a former judge of Calcutta High Court who made serious allegations and passed tit-for-tat orders against the judges of Supreme Court. The then CJI, JS Khehar, called for a Full Court of all judges of the Supreme Court which decided to suo motu take up the case for contempt of court against him by a bench of seven senior-most judges. Justice Karnan was awarded a term of six months by the bench in May 2017.
Last month, Justice Chelameswar had also written to the CJI, expressing grave concern over the propriety of the law ministry writing directly to Karnataka High Court, despite the Collegium reiterating a name for elevation to the High Court. He had demanded a Full Court to discuss government interference in appointments to high courts.
Interacting with students of the Kerala Media Academy on Monday, Justice Joseph had spoken on the two “watchdogs” of democracy, the judiciary and the media. He said that “both the watchdogs have to be vigilant, barking for saving democracy, barking for when the owner’s property is in danger.”
In remarks which assume significance given this letter to CJI, Justice Joseph had said, “The barking is to alert the owner and if even the barking is not yielding the fruit of catching the attention of the owner and the threat continues, barking dogs will be left with no option but to bite. Such a situation is the exception to the old saying that barking dogs seldom bite.”