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Indu Malhotra in as Supreme Court judge, government is still silent on Justice KM Joseph

Supreme Court elevation: The government continues to be silent on the other name recommended to the government by the Supreme Court Collegium along with that of Malhotra — Uttarakhand High Court Chief Justice K M Joseph.

Written by Seema Chishti , Ananthakrishnan G | New Delhi |
Updated: April 26, 2018 7:55:04 am
indu malhotra, woman supreme court judge, first female sc judge, k m joseph, chief justice of india dipak misra, collegium recommendation, supreme court, dipak misra, collegium system Advocate Indu Malhotra, and Uttarakhand High Court Chief Justice K M Joseph

Senior advocate Indu Malhotra, the first woman to be elevated to the post of a Supreme Court judge directly from the Bar, has received the Presidential warrant, or requisite clearance to take oath as a Supreme Court judge. Her swearing-in is scheduled Friday.

The government continues to be silent on the other name recommended to the government by the Supreme Court Collegium along with that of Malhotra — Uttarakhand High Court Chief Justice K M Joseph. Both names were proposed by the five-judge Collegium, headed by Chief Justice Dipak Misra, at its last meeting on January 10.

Justice K M Joseph had struck down the Centre’s order to impose President’s Rule in Uttarakhand in 2016. Ever since, the Collegium’s recommendation for Justice Joseph’s transfer to Andhra Pradesh and then his elevation to the Supreme Court has been blocked by the central government.

The Law Ministry continues to sit on the recommendation — if his name is returned, the Collegium can reiterate his name which will make it incumbent upon the government to issue a warrant for his appointment to the Supreme Court.

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Also Read | Collegium nod for High Court judge’s elevation: Government may ask SC to rethink

There has been a battle of wits between the Collegium and the Centre on the government’s silence over Justice Joseph’s appointment. Sources said the Collegium is determined to not recommend more names if the Centre does not clear this one.

The Centre, equally resolute, has tried to hold “seniority” and “regional diversity” as arguments to not move on his file.

Just weeks after assuming office, the NDA government had turned down the recommendation of the Collegium to appoint senior advocate Gopal Subramaniam as a judge to the Supreme Court. He was active and forceful in his position on the Gujarat riots in 2002 and perceived to be “close” to the UPA leadership.

Also Read | Law Ministry processes file on elevating senior advocate Indu Malhotra as SC judge

The non-elevation of Justice K M Joseph puts the CJI in a spot. Apart from the heat of an impeachment motion from the Rajya Sabha, Chief Justice Misra has been facing consistent pressure from his senior colleagues to challenge the government for blocking judicial appointments both to the high courts and Supreme Court. The separation of the two names by the Centre, an unusual move, could add to the pressure on him to be seen as more assertive vis a vis the Centre.

Sources said the Chief Justice is yet to formally approach his colleagues on the Collegium with either a formal intimation on the warrant or to try and schedule another meeting to discuss the next steps.

Also Read | Indu Malhotra to be first woman judge in Supreme Court directly from Bar

As reported in The Indian Express, Justice J Chelameswar had written on March 21 to all judges of the Supreme Court, asking CJI Misra to call a full court on the judicial side to discuss the issue of government interference in the appointment of judges to the high courts.

On April 9, Justice Kurian Joseph, another member of the Collegium, had written a strongly worded letter to CJI Misra and all judges, asking him to set up a bench of seven most senior judges to hear the matter of the government’s silence on the recommendations of the Collegium for appointment of Justice Joseph and Indu Malhotra. He said that three months had passed since the Collegium made the recommendations but the government had not moved on it.

“Failure to discharge their duty by sitting over on the recommendations of the Collegium doing nothing, in administrative law, is abuse of power. 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?”, Justice Kurian Joseph wrote.

Read | Elevation to Supreme Court: If Govt returns Justice Joseph’s file, Collegium is likely to send it back

This Sunday, two other members of the Collegium, Justices Ranjan Gogoi and Madan Lokur had written to the CJI, demanding that he call a “full court” to discuss “institutional issues” and the “future” of the court. Justice Gogoi is expected to succeed CJI Misra who demits office in October.

Meanwhile, the three-judge Collegium of the Supreme Court for High Courts recommended the appointment of eight judicial officers and four advocates as judges of the high courts of Gujarat, Chhattisgarh, Bombay and Madras.

The names were cleared by the Collegium, comprising CJI Misra and Justices Chelameswar and Gogoi, which met here on April 19.

The names approved for the Gujarat High Court are advocate Umesh Amritlal Trivedi and judicial officers Ajaykumar Chandulal Rao, Vishnukumar Prabhudas Patel, Vireshkumar Bavchandbhai Mayani, and Ashutosh Pushkerray Thaker.

Also Read | Call full court to discuss SC future: Justices Gogoi, Lokur write to CJI Dipak Misra

The Collegium said the decision on three lawyers can wait. It also rejected the name of Pranav B Desai and Pravinbhai Ranchhodbhai Patel, both judicial officers. Desai, who delivered the ruling in the Gulberg Society case related to the 2002 post-Godhra riots, retired in December 2017. The Collegium noted that the proposal for elevation of Desai had already been rejected by it in March 2010.

The names approved for Chhattisgarh are advocate Parth Prateem Sahu and judicial officers Gautam Chouradia, Vimla Singh Kapoor and Rajani Dubey.

It also recommended the elevation of advocate Chetan S Kapadia as judge of the Bombay High Court.

For the Madras High Court, the Collegium cleared the names of advocate B Pugalendhi and judicial officer B Sarodjiny Devy as judges.

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