The government in a letter to CJI Dipak Misra said the proposed appointment of Justice KM Joseph as a Judge of the Supreme Court at this stage does not appear to be appropriate. Uttarakhand High Court Chief Justice KM Joseph's name was recommended to the government by the Supreme Court Collegium along with that of Malhotra. 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.
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.
Late Wednesday evening, the government cleared the name of Senior advocate Indu Malhotra, who will become the first woman to be elevated to the post of a Supreme Court judge directly from the Bar. Malhotra received the Presidential warrant, or requisite clearance to take oath as a Supreme Court judge. Her swearing-in is scheduled Friday.
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In a statement to PTI, Vikas Singh said, "Government will be responsible. This kind of interference by the executive is definitely uncalled for. By delaying this, they have definitely interfered in seniority rules and in that sense they have interfered in the functioning of judiciary. A very serious matter. The civil society and the judges of the Supreme Court in full court should discuss and take it up with the government."
SCBA president Vikas Singh, speaking in his individual capacity, expressed concern over the delay in the appointment of Justice Joseph and said "this kind of interference by the executive is definitely uncalled for".
Constitutional propriety demands that warrant of appointment of Indu Malhotra be implemented , observed the Supreme Court
With the court putting its foot down, the lawyers withdrew their demand for stay of the warrant and said they will file their plea raising other constitutional questions that the issue may raise.
CJI Dipak Misra sternly rebuked lawyers seeking a stay on the warrant of appointment of Sr Advocate Indu Malhotra as judge of apex court. CJI Dipak Misra told Adv Indira Jaising, who mentioned it, that their prayer was unimaginable, unthinkable, inconceivable and never heard of.
Jaising said they were for Malhotra's elevation but were only concerned about the government segregating files of Malhotra and Uttarakhand Chief Justice KM Joseph whose names were recommended together by the Collegium for elevation on January 10.
The government's 'seniority argument' however has been used “conveniently and inter-changeably, either cited as per initial appointment as a Judge or as a Chief Justice”, as an argument to push or nix names of judges. But after Chief Justice Altamas Kabir, other than Chief Justice M L Dattu, none of the Chief Justices were Judges who were Chief Justices in their Courts or seniormost by that yardstick when elevated.
The Collegium consists of the Chief Justice and four seniormost Judges Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph. Its composition will change only in June when Justice Chelameswar retires.
The letter states: "This proposal for reconsideration of the case of Shri Justice KM Joseph has the approval of Honourbale President and Honourable Prime Minister"
Prasad has also told the CJI that Kerala has received adequate represenation in the Supreme Court and as Chief Justices of High Courts. "At this stage, elevation of one more judge from Kerala High Court as a judge of the Supreme Court of India does not appear to be justified as it does not address the legitimate claims of the Chief Justices and Puisne Judges of many other High Courts and forestalls the claim of other senior Chief Justices and Puisne Judges."
At the press conference, Sibal further said that the government was treading dangerously and the judiciary was under threat. "The independence of the judiciary is under threat. The government wants to pack courts with judges of its choice," he said.
The CPM Thursday said the government's decision to not clear the appointment of Justice K M Joseph was an unwarranted intrusion into the selection process of a judge. The Opposition party argued that it will affect the independence of the judiciary. It further demanded the intervention of President Ram Nath Kovind.
In his letter to Chief Justice of India Dipak Misra, Law Minister Ravi Shankar Prasad said Joseph is the forty-second in all India seniority of High Court judges and eleventh in seniority of High Court chief justices.
The Congress Party today held a press conference where it questioned why the government has been refusing to clear the appointment of Justice KM Joseph despite his name being cleared by the Supreme Court collegium.