Nine days after it deferred its decision at the meeting called to consider the reiteration of the choice of elevating Chief Justice of Uttarakhand Justice K M Joseph to the Supreme Court, the Supreme Court collegium is set to meet Friday afternoon at 1 pm.
It was four months ago, at its meeting on January 10, that the Collegium consisting of Chief Justice Dipak Misra, the senior-most judge in the apex court Justice J Chelameswar and Justices Ranjan Gogoi, Madan Lokur and Kurian Joseph had decided unanimously to recommend the names of Justice K M Thomas and (then senior advocate) Indu Malhotra to the Supreme Court.
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.
Interestingly, while the agenda on May 2 spoke of the matter of reconsideration of Justice K M Joseph’s name, it also appended the matter of elevation of judges from Calcutta, Rajasthan, Telangana and Andhra Pradesh “in view of the concept of fair representation”. This time, however, the second subject-matter on the agenda, is simply “to consider names of High Court Judges for elevation as judges of the Supreme Court.”
The difference in phrasing this time could be significant as the Centre, while rejecting the elevation of Justice K M Joseph, had cited seniority (he is 42nd in the All India Judges seniority list), regional representation and the lack of SC/STs representation.
The Centre’s contention was that Kerala was over-represented, Justice K M Joseph was not senior enough and there were no SC/ST Judges. The “fair representation” might have been viewed as the judiciary buckling under pressure from the Centre on having conceded that on principle. The phrase not being on the agenda may be indicative of a shift in the mood in the collegium from the last time.
Apart from the Supreme Court Bar Association, several jurists and former Chief Justices and judges had said that the Supreme Court must go ahead and reiterate the name of Justice K M Joseph as it would then, as per the law in the country, be incumbent on the Centre to swear him in. Former Chief Justice of India Justice R M Lodha had termed the Government’s move to segregate names — return Justice Joseph and approve Malhotra — as “striking at the very heart of judicial independence.”
While many issues between the Supreme Court and the Executive remain unresolved, including the Memorandum of Procedure (or the terms of engagement between them), the matter of Justice K M Thomas is being watched closely as a gauge of how far the Supreme Court with Chief Justice Dipak Misra at its helm, is ready to go to assert its independence.
The Centre last month cleared the name of Indu Malhotra to be elevated but sent back Justice K M Joseph’s name. It was Justice Joseph who had struck down the Centre’s bid to impose President’s rule in Uttarakhand. The Law Minister denies that this is a factor.
As reported in The Indian Express, there was an informal meeting of four Judges of the collegium on May 9. That, alongwith a letter by Justice J Chelameswar to his four colleagues in the collegium, detailing why he felt Justice K M Joseph’s name should be reiterated immediately, appear to have resulted in CJI Dipak Misra calling a formal meeting for Friday to consider the matter.
The apex court is functioning with 24 judges out of a total strength of 31; four judges are expected to retire this year.