SC rejects plea to stall Indu Malhotra’s appointment, on KM Joseph says wait

The bench, also comprising Justices A M Khanwilkar and D Y Chandrachud, rejected outright the demand for a stay, put forth by a group of around 100 lawyers led by advocate Indira Jaising, saying it was “unthinkable, unimaginable, inconceivable and never ever heard of… what kind of a writ petition is this?… A member of the Bar has been appointed and you say stay it”.

“It’s an extremely serious matter for a Constitutional court to stay the warrant of appointment of a judge… Constitutional propriety demands that the warrant must be executed,” the bench said. Malhotra’s swearing-in is scheduled Friday, and she will become the first woman from the Bar to be directly elevated as a Supreme Court judge.

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On the Justice Joseph matter raised by the group of lawyers, CJI Misra said: “As per Constitution Bench decisions, the government can send a file back for reconsideration… When they send it back, we will consider it appropriately.”

The bench told the lawyers that some of the points raised by them may have a bearing on the independence of the judiciary but said those will be treated separately. The petitioners then said they will not press the demand for a stay on the appointment warrant and would file a petition raising other Constitutional points. They requested the court to take it up at an early date.

But the bench turned down their plea for early hearing, saying “it is no demolition matter or matter concerning personal liberty” to be taken up urgently and “it will come up in due course”.

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The lawyers led by advocate Jaising mentioned their plea before the bench when it reassembled at 2 pm after the lunch recess.

Jaising said they fully believed that Malhotra was a deserving candidate and their only concern was about the government bifurcating the files of Malhotra and Justice Joseph whose names were recommended together for elevation by the Collegium on January 10.

Their concern, Jaising said, was only about the impact that the government decision would have on the independence of the judiciary. Accusing the government of cherry-picking names, she said if it wanted to return the file for reconsideration, it should have sent both names together.

She said the notification for appointment was out and requested the court to stay the warrant and hear their plea urgently Friday. But the bench said the issue will be dealt with at an appropriate time when the files return to the Collegium.

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“Nobody perhaps understands the gravity of the situation… the Collegium will take an objective view as and when the government acts. How do you know what the government has done? It is premature. We will now examine it appropriately at the appropriate level and deal with it,” CJI Misra said.

If the file, he said, is sent back for reconsideration, then the controversy will come to an end, so “let us see what the government will do”.

At this, Jaising said: “If it’s reconsidered, I have no problems at all.”

Justice Chandrachud said the question was not just about the appointments to the Supreme Court, but also the High Courts. Recalling his experience as Chief Justice of Allahabad High Court, he said there are situations where the Collegium recommends a large number of names for the High Courts and the government wants some to be reconsidered.

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He wondered if it can then be insisted that the government must send back all names together. These are matters, he said, which need further deliberations. The CJI added to this, asking how will High Courts function in such a situation.

Jaising contended that pick-and-choose was going on and “we only want to protect the independence of the judiciary”. Justice Chandrachud said no one was questioning their locus standi. Justice Khanwilkar wondered how the petitioners could assume what was in store even without the decision being known.

Jaising reiterated that the Bar “solidly stands with Indu (Malhotra)” but was only against the bifurcation of files. As the arguments continued, an upset CJI said: “Enough.”

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Jaising said she understands the points raised by the bench. At this, the CJI said: “No, you don’t understand. That’s loud and clear.”

Supreme Court Bar Association president Vikas Singh, who was part of the group of lawyers, said there is concern about the seniority of such judges when recommendations are returned. Suppose four judges are recommended and the name of one is returned, then by the time he or she is reconsidered by the government, they lose their seniority vis-a-vis the others, he said.

Justice Chandrachud said: “Yes, that does raise a valid Constitutional question.”

Jaising said there was an impression that some judgments of this court had not gone down well with the government. So an oversight by the court, she said, was needed to avoid cherry-picking.

Justice Khanwilkar sought to know what judgments were they referring to. The lawyers said they were pointing to the judgment upsetting imposition of President’s rule in Uttarakhand and the one striking down the National Judicial Appointments Commission.

Justice Chandrachud reminded them that as a Constitutional court, “we cannot look into the palatability of our judgment to any section”. Advocate Gopal Sankaranarayanan contended that the government was sitting on names recommended by the Collegium.