Fear of opposition attack, political fallout forced Modi govt to change its mind on Justice Joseph

File image of Ravi Shankar Prasad | PTI

The Centre finally relented in elevating the judge to the SC, but not before a serious run-in with the higher judiciary.

New Delhi: Up until the last minute, the Narendra Modi government apparently had no intention of appointing Uttarakhand High Court chief justice K.M. Joseph to the Supreme Court.

In fact, on 31 July, only two names — Madras High Court chief justice Indira Banerjee and Odisha High Court chief justice Vineet Saran — had been cleared for appointment to the apex court while it had been decided to keep Joseph’s name pending.

But when the Centre finally issued the notification of appointment on 3 August, it contained the names of all the three judges — Justices Indira Banerjee, Vineet Saran and K.M. Joseph.

So what had changed? A Parliamentary debate on a bill and the knowledge that the opposition was planning to aggressively take on the government, over its continued interference in the affairs of the higher judiciary could have forced the Centre’s hand.

ThePrint gets you the inside story, of why the government hurriedly cleared Joseph’s name, pieced together after talking to several persons in the know of developments.

The 1 August Lok Sabha debate

On 1 August, around 1 pm, the Lok Sabha began discussing the government motion to pass a bill to amend the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015. Union Law and Justice Minister Ravi Shankar Prasad was in the House, piloting the bill.

In his speech, Prasad referred to the appointment of judges. “In 2017, we had appointed 115 high court judges. In 2018, we have appointed 34 high court judges; we have sent 126 judges to the Supreme Court Collegium for appointing as judges. Sir, by this year’s end, by God’s will, we will cross the highest number of appointments of high court judges ever in one year. The judges of the Supreme Court have been appointed. About 300 to 400 judges have been confirmed (sic),” he said.

That was the opening the Opposition was waiting for. For, unknown to Prasad and the government, the Opposition was already planning to corner the Modi dispensation over its controversial record of sitting on collegium recommendations or returning names on what the judiciary believes are dubious grounds.

Senior Supreme Court advocate and BJD MP Pinaki Misra, who is also related to the chief justice of India Dipak Misra, took on the government over 143 cases of judicial appointments in the high courts and the Supreme Court pending with the government.

Saying that while he understood the “law minister’s anxiety that not enough names are coming from the collegium as well”, Misra underlined that while the government alone was not to be blamed (for shortage of judges), the “government is also to be blamed for the manner in which the names have been sent back, the manner in which the names have been kept back and the manner in which the government has sat over the files”.

He also referred to the plea filed in the Supreme Court seeking direction to the Centre to clear appointments within six weeks of collegium recommendation.

CPM MP Anirudhan Sampath also wondered about the status of collegium recommendations.

The Congress’s leader of party in the Lok Sabha, Mallikarjun Kharge, also took on the government over the issue.

Sources told ThePrint, within minutes, sensing the fact that the Opposition was planning to turn the stalling of Joseph’s appointment into a major issue – both inside and outside the Parliament – the Centre decided to clear his appointment too along with others.

“The Centre knew it had lost the perception battle, perception that it was wrongly trying to stall Justice Joseph’s appointment. In an election year, it can’t afford to turn this into an issue bigger than it already is. That is why it made the appointment,” said a government functionary aware of the developments.

Joseph made junior to the other two appointees

While it appointed Joseph, the Modi government decided to, once again, take on the Supreme Court, this time on the issue of who among the three judges would be senior. In its communication to CJI Dipak Misra, the Centre has said that Joseph would be sworn in after Justices Indira Banerjee and Vineet Saran. The Centre has taken this stand on the grounds that both the chief justices are senior to Joseph since they were appointed judges before him.

In doing so, the Centre seems to have decided to ignore the settled law and procedure that Joseph should have been given precedence over the other two since his name was recommended in January while the other two names were recommended in July.

Also, even the decision of the collegium to reiterate his name was taken on May 16 but was communicated to the Centre in July along with the other two names.

Legal experts say Joseph should have been given seniority over the other two. But, the Centre decided to take its chances with the Chief Justice of India, who, incidentally, has the authority to decide the seniority — whosoever is given oath by him first will be senior.

“But, considering the fact that, so far, there has been no push-back from the CJI on any significant issue, the chances of CJI Misra taking on the government are negligible. Our understanding is that the Supreme Court communication with regard to the oath-taking ceremony of the three judges, which has been fixed for 7 August, also places Justice Joseph third,” said a senior advocate.