A brief informal meeting of four of the five most senior judges of the Supreme Court took place on Wednesday afternoon where finalisation of the Memorandum of Procedure (MoP) and the reiteration of Justice K M Joseph’s name for elevation to the apex court were discussed. This was the first such meeting among these judges after the formal collegium meeting on May 2 which was expected to reiterate the name of Chief Justice of Uttarakhand High Court, Justice K M Joseph, but deferred its decision.
Justices Ranjan Gogoi, Kurian Joseph and Madan Lokur met Chief Justice Dipak Misra in his chambers around 4.15 pm.
Justice J Chelameswar was on leave and was not present at the meeting. However, The Indian Express has learnt that he has written to the Chief Justice and three fellow-members of the Collegium making clear his reiteration of the name of Justice K M Joseph for elevation to the Supreme Court.
In fact, as there is unanimity in the collegium over reiterating his name, CJI Misra is under pressure to convene a formal collegium meeting where Justice K M Joseph’s name can be unanimously reiterated. According to current norms, the Centre, on receiving a reiteration from the Collegium, would have no choice but to issue a Presidential warrant and swear him in as a judge of the Supreme Court.
That can only happen once the Chief Justice convenes a formal meeting of the Collegium and places that on the agenda. Sources say there are apprehensions that if the Chief Justice bundles other issues or names, the Centre may again segregate the names and swear in judges selectively.
Last time, in addition to Justice K M Joseph, another aspect twinned with the agenda was, “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.” This was seen as the sticky point that would give the impression that the judiciary had buckled and was giving the government an easy way out.
At the Wednesday meeting, the three judges also raised issues regarding the finalisation of the MoP, the system which decides the terms of engagement between the judiciary and the executive. It was agreed that the judiciary needs to stand up to the government which has been maintaining that the MoP has still not been finalised as it is pending with the collegium. The Supreme Court has maintained that it is final as far as it is concerned and there will be no further changes.
But the Centre has been suggesting that the final call on the MoP is yet to be taken. The finalisation of MoP was also part of issues raised by the Law Minister Ravi Shankar Prasad in his letter to the Chief Justice on April 30 which has irked the judges. They want the CJI to clarify the matter to the government.
Meanwhile, in his letter to his colleagues in the Collegium, Justice J Chelameswar has made clear that K M Joseph’s name must be reiterated, as there is no change in the facts on the ground regarding his case. This is the second letter on record that Justice Chelameswar is learnt to have written regarding Justice K M Joseph’s elevation. The first letter was in 2016, to the Collegium, when Justice T S Thakur was the Chief Justice and his name had formally come up for discussion.
In an unusual move, the Centre had returned the name of Justice K M Joseph while issuing the Presidential warrant for Ms (now Justice) Indu Malhotra, who was sworn in last month.
Justice K M Joseph was part of the two-Judge bench which struck down the Centre’s decision to impose President’s rule in Uttarakhand in March 2016. Law Minister Ravi Shankar Prasad has denied that this has anything to do with the Government returning his file for reconsideration.
The Law Minister’s letter to the Chief Justice mentioned “seniority” being disregarded, the fact that he was from Kerala, which “already” has representation and the fact that there were no judges form SC/ST backgrounds. The collegium maintains that ranking in the All India list was not the reason for other elevations; Kerala is a large court and its only representative Justice Kurian Joseph would retire later this year and that if SC/ST Judges were to be picked then they could be considered later, and this need not be linked to Justice K M Joseph’s elevation.
The Supreme Court is currently functioning with 24 Judges as against the strength of 31, sanctioned by Parliament.