In response to lawyers and bar association plea asking for stay on Indu Malhotra’s appointment as SC judge, CJI says it’s ‘unimaginable, inconceivable’.
New Delhi: Chief Justice of India Dipak Misra said Thursday said there is “nothing wrong” with the government asking the Supreme Court collegium to reconsider its recommendation to appoint Uttarakhand chief justice K.M. Joseph as a judge of the apex court.
“The government is well within its rights to do so,” the CJI-led three-judge bench observed orally.
The CJI also flatly refused to stay the appointment of Indu Malhotra in response to the government’s move. “It is unthinkable, unimaginable, inconceivable. This is never, never allowed,” CJI Misra said.
The CJI was responding to an urgent petition filed by a group of top Supreme Court lawyers and the Supreme Court Bar Association, minutes after the union law minister wrote to the CJI asking for a reconsideration of Joseph’s elevation.
Timeline of the controversy
On Wednesday, escalating its conflict with the judiciary, the Modi government appointed senior advocate Malhotra as a judge of the apex court while ignoring the other recommendation to elevate Joseph. Both recommendations were sent together to the government on 10 January.
A day later, the government wrote to the CJI, raising several objections against Joseph’s appointment.
Former Additional Solicitor General Indira Jaising asked the court to stay the Presidential warrant appointing Malhotra as a judge of the apex court. “The CJI must refuse to allow swearing in Malhotra as a judge to protect the independence of the judiciary till the government appoints Justice Joseph,” Jaising argued.
Legal opinion divided
Legal experts have differed on whether the government can separate the two recommendations and pick one and not the other. Law minister Ravi Shankar Prasad cited judgments of the apex court to show that it could accept one recommendation.
As per settled law, if the collegium reiterates its recommendation to appoint Joseph, the government would be bound by it.
Incidentally, the last time the CJI decided to take up issues related to appointments on the judicial side, it did not go down well with senior judges of the collegium. In their 12 January press conference, four judges — J. Chelameswar, Ranjan Gogoi, Kurian Joseph and Madan B. Lokur — had objected to a decision by the same CJI-led three-judge bench on finalising the memorandum of procedure (MoP).
The four judges have also made several requests to the CJI in the last month to hold a full court meeting to discuss “institutional issues”, particularly the government’s efforts to stall the appointment of K.M. Joseph. The CJI is yet to respond to any of the requests.