THE Government today underlines the importance of regional representation in the apex court as one reason to block Justice K M Joseph’s elevation. The irony is that the government and the Supreme Court were on different sides on this issue when they last crossed swords over judicial appointments in the famous NJAC case in 2015.
In October 2015, it was the Supreme Court, which had argued for regional representation in the appointment to the judges to the apex court while quashing the National Judicial Appointments Commission Act (NJAC) and it was the BJP government which was silent on this criterion.
Returning the file of Justice K M Joseph for reconsideration, the BJP-led Government has now argued that the recommendation of elevating Justice Joseph is not in accord with parameters laid down by the SC (in the second (1993) and third judges cases (1998)). And that the High Courts of Calcutta, Gujarat, Rajasthan and seven other states are not represented in the SC.
The National Judicial Appointments Commission Act, passed by Parliament, had only stated that selection shall be on the “basis of ability, merit and any other criteria of suitability”. It was former Chief Justice of India Justice J S Khehar, striking down the first proviso under Section 5(2) of the Act, had said: “…There cannot be any doubt, that consideration of Judges on the basis of their seniority, by treating the same as a primary consideration, would adversely affect the present convention of ensuring representation from as many State High Courts, as is possible. The convention in vogue is to maintain regional representation.”
These observations came in the backdrop of arguments by senior advocate Arvind P Datar. In the judgment, referring to Datar’s arguments, Justice Khehar said: “…It was submitted, that the instant mandate contained in the first proviso under Section 5(2) of the NJAC Act, clearly breached the ‘federal structure’ of governance, which undoubtedly required regional representation in the Supreme Court. Since the ‘federal structure’ contemplated in the Constitution was also one of the ‘basic structures’ envisioned by the framers of the Constitution, the same could not have been overlooked.”
Incidentally, the SC collegium yesterday which met and deferred the decision on Justice Joseph adopted a resolution: “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.”
The second half of the resolution, significantly, came after the Government, while returning the Justice Joseph file, had underlined that many High Courts were going unrepresented in the apex court.