Cautiously, SC Collegium puts its foot down: Reiterates decision to elevate Justice Joseph

There are some indications that separate files could be sent — one for Justice K M Joseph’s name and the other for more judges. But it remains to be seen what the Centre does when it formally receives the reiteration.

Written by Ananthakrishnan G , Seema Chishti | New Delhi | Updated: May 12, 2018 9:20:10 am
Cautiously, SC Collegium puts its foot down: Reiterates decision to elevate Justice Joseph On April 26, the government returned for reconsideration the collegium’s recommendation to elevate Justice K M Joseph but notified the appointment of Malhotra as a judge. (Express photo by Neeraj Priyadarshi)

DESPITE objections from the Centre, the Supreme Court Collegium on Friday stood by its recommendation to elevate Uttarakhand Chief Justice Justice K M Joseph as judge of the apex court. The move comes two weeks after the Union Law Ministry asked the Collegium to reconsider its January 10 proposal to elevate him.

The five-member Collegium, comprising Chief Justice of India Dipak Misra and Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph, which met this afternoon, said that “on principle,” it “unanimously agreed that the recommendation…should be reiterated”.

The resolution added that “…the said reiteration should also be accompanied by the recommendation of the names of Chief Justices of High Courts for elevation as Judges of the Supreme Court, for which detailed discussion is required”.

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In view of this, “the meeting,” it said, “stands deferred for being held at 4.15 pm on Wednesday, 16th May, 2018”.
Today’s unanimous reiteration comes as a relief to those looking to the Court’s next moves in its bid to assert its independence with the Centre. It is believed that just sending Justice K M Joseph’s name back would have suggested that the apex court was directly challenging the Centre and so, a middle-of-the-road course was adopted. Under this, the Justice Joseph file would be sent along with names of other judges for the Supreme Court. This, after “detailed discussions” at the next Collegium meeting.

Such a move is also seen as softening the act of reiterating a name that the Centre has been seen to be particularly averse to. There are some indications that separate files could be sent — one for Justice K M Joseph’s name and the other for more judges. But it remains to be seen what the Centre does when it formally receives the reiteration.
According to current norms, a unanimous reiteration must be agreed to by the Centre and the Judge must be sworn in.

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The Collegium had last met on May 2 to reconsider the case of Justice K M Joseph in view of the letter from the government. Also on the agenda then was considering names of judges from High Courts of Calcutta, Rajasthan and Telangana & Andhra Pradesh for elevation to the apex court “in view of the concept of fair representation”. Later on May 9, three members of the Collegium — Justices Gogoi, Lokur and Kurian Joseph — had an informal meeting with the CJI where they discussed the Justice K M Joseph issue. Though Justice Chelameswar, who retires on June 22, wasn’t present at the meeting, he backed reiteration of the name.

Though the names of Justice K M Joseph and senior advocate Indu Malhotra were recommended together, the government only approved Malhotra’s name — that too more than three months after the Collegium had approved them — and returned Justice K M Joseph’s name on April 26 for reconsideration. Malhotra has since been sworn in as a judge of the Supreme Court.

The delay in finalisation of the January 10 recommendations touched off protestations within. In a strongly worded letter to CJI Misra, Justice Kurian Joseph said the “very life and existence” of the Supreme Court was under threat and “history will not pardon us,” if the court doesn’t respond to the government sitting on the recommendation. He said “this 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.”

Returning Justice K M Joseph’s name, Union Law Minister Ravi Shankar Prasad, in a letter to the CJI, underlined that “this proposal for reconsideration…has the approval of the Hon’ble President and the Hon’ble Prime Minister” and had listed reasons why his appointment “at this stage does not appear to be appropriate.”

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These include: Justice Joseph is at No. 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”.

Critics, however, sought to link the government’s decision not to return Justice K M Joseph’s name to his 2016 decision to overturn President’s rule imposed by the NDA government in Uttarakhand. But government sources denied this saying Justice J S Khehar who headed the Constitution bench which struck down the National Judicial Appointments Commission had gone on to become Chief Justice of India.

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