Collegium to meet soon to decide on three more names, but it could find itself in a quandary given the uncertainty over the Modi government’s move.
New Delhi: The Supreme Court collegium Wednesday deferred its meeting on the elevation of Justice K.M. Joseph to the top court on the Modi government’s insistence to ensure fair representation in judicial appointments.
But the collegium, which is likely to meet soon to discuss three more names for appointment and counter the government’s narrative, could find itself in a quandary, especially with the possible response that the Centre could make any move by the collegium uncertain.
Options before the collegiums:
1. The first option is to reiterate Joseph’s name before making any fresh recommendations.
But even the collegium is divided on this approach.
In the second letter written by union law minister, the government has stressed that reiterating Joseph’s name without addressing concerns on fair representation will set a “precedent”.
But as per the Second and Third judges’ cases in 1993 and 1998, if the collegium reiterates its recommendation “with reasons for not withdrawing the recommendation, then that appointment as a matter of healthy convention ought to be made” by the government.
The rulings further clarify that non-appointment of the recommended judge is “permissible if the final opinion of the CJI is contrary to the opinion of the senior judges consulted by the CJI or vice versa”.
2. The second option is to send two separate recommendations — one reiterating its stand on appointing Justice Joseph and another one for appointing justices Indira Banerjee, Subhash Reddy and Dinesh Maheshwari.
In this the government could choose to make the fresh appointments and sit on Joseph’s file. Alternatively, the government could send back Joseph’s file again.
The collegium’s view will have to be unanimous only in the case of reiterating a name to the government. However, in fresh appointments, agreement by majority of the collegium members will suffice.
3. The third option is to send a common recommendation with names of Joseph and other fresh candidates.
This could be to ensure that the government cannot segregate Joseph’s name from the list. However, last week, the government did precisely that when it appointed justice Indu Malhotra and stalled Joseph’s elevation even though both names were sent together on 10 January.
Significantly, if the collegium decides to send the all the names together, Joseph could end up being junior to the others. This is because Joseph is junior to the three other judges considered Wednesday in all-India seniority list.
While Joseph is currently 42nd, Banerjee is number 5 in all-India seniority list, the other two judges — Reddy and Maheshwari — are at serial numbers 10 and 32, respectively.