THE much-awaited meeting of the five-member Supreme Court Collegium, the first since the unprecedented January 12 press conference by four of its most senior judges and which was scheduled in the shadow of the impeachment move against Chief Justice of India Dipak Misra, ended briefly Wednesday evening.
It did not take a decision in the matter of Uttarakhand Chief Justice K M Joseph whose name it had initially recommended on January 10 for elevation to the Supreme Court, only to be returned by the government. The resolution adopted by the Collegium and uploaded on the official website of the apex court ends abruptly with the remark “Deferred.”
The Collegium was expected to reiterate its recommendation on Justice K M Joseph after the government had sent back his file for reconsideration to the apex body, which is in charge of appointments to the higher judiciary, citing fair regional representation and seniority.
One of the judges of the Collegium, Justice Kurian Joseph, had told The Indian Express earlier this week that “the Collegium might have to reiterate its recommendation furnishing facts and figures, and citing precedent, which have not been put in perspective by the Government when it returned his name”.
The resolution adopted Wednesday evening said: “The Collegium met to consider the following Agenda: To reconsider the case of Mr. Justice K M Joseph, Chief Justice, Uttarakhand High Court (Parent High Court: Kerala), pursuant to letters dated 26th & 30th April, 2018 received from Ministry of Law & Justice, Government of India and also to consider the names of Judges from Calcutta, Rajasthan, and Telangana & Andhra Pradesh High Courts for elevation as Judges of the Supreme Court, in view of the concept of fair representation.”
It bears the name of all the five seniormost judges Chief Justice of India Dipak Misra and Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph indicating that all the five attended the meeting. Incidentally, Justice Chelameswar was on leave for the day and did not attend court but came for the meeting.
The second half of the resolution, significantly, comes after the Government, while returning the Justice Joseph file, had underlined that many High Courts were going unrepresented in the apex court.
Sources told The Indian Express that there was no discussion in the meeting which began at the scheduled time at 4.15 pm. Soon, the Supreme Court website had uploaded the notice announcing that the Collegium meeting had been deferred.
Sources said another Collegium meeting is expected to be held early next week.
The resolution also makes it clear that the government had sent two letters to the Chief Justice of India regarding the issue, one on April 26 in which it had flagged the regional representation and seniority issues and the other on April 30.
Sources told The Indian Express that the April 30 letter elaborated upon the April 26 letter and invoked the March 2017 Memorandum of Procedure (MoP) finalised by the Collegium approved by then CJI Justice J S Khehar, Justices Misra, Chelameswar, Gogoi and Lokur where regional representation and seniority subject to merit were underlined as factors for elevation.
In the latest letter, the Government is said to have referred to Paragraph 5 of the draft MoP communicated to Government in March last year to highlight that the Collegium had stressed the importance of regional representation and seniority subject to merit while considering elevation of Judges to the apex court, the sources said.
The Government had sent the second communication to stress that while there may have been departures from the rule of regional representation and seniority in the past, that should however not be a precedent for future actions and that Collegium should also respect the spirit behind these considerations in judicial appointments.
Though Justice JS Khehar retired, the four others — Justices Dipak Misra, Justice J Chelameswar, Ranjan Gogoi and Madan Lokur — continue to be members of the current Collegium.
The Collegium had recommended the names of senior advocate Indu Malhotra and Justice K M Joseph for elevation to the apex court. The government approved Malhotra and notified her appointment following which she was sworn in as a judge of the Supreme Court on April 27.
The Union Law Ministry sent back Justice Joseph’s file to the Collegium saying that Kerala High Court — which was his parent High Court already had adequate representation in the apex judiciary while many other High Court did not have any representation. There were not enough Scheduled Caste and Scheduled Tribe members too in the Supreme Court, the government had said.
The government’s letter to the CJI also said that in the All India High Court Judges’ seniority list, Justice Joseph is placed at serial number 42. “There are presently 11 Chief Justices of various High Courts who are senior to him in All India High Court Judges’ seniority list”, it said.