The letter comes a fortnight after Justice J. Chelameswar wrote to CJI about the need for a judicial intervention to tackle the problem of the Centre holding up SC collegiums recommendations
New Delhi: The face-off between the judiciary and the executive has taken a new turn with another member of the SC collegium expressing alarm and saying the “very life and existence” of the Supreme Court was under threat if the apex court didn’t respond to the government.
Justice Kurian Joseph has expressed his concerns in a letter to Chief Justice of India Dipak Misra and other judges of the country’s top court.
The letter comes a fortnight after Justice J. Chelameswar, the second most senior judge of the Supreme Court, wrote to CJI Dipak Misra and 22 other judges about the need to take up, on the “judicial side”, the issue of the Narendra Modi government sitting on collegium recommendations without stating any reason. ThePrint was the first to report Chelameswar’s letter.
“… It is the first time in the history of this court where nothing is known as to what has happened to a recommendation after three months,” Joseph has written.
Reiterating Chelameswar’s demand, he has asked the CJI to constitute a bench of seven “senior-most judges” to look into the government holding up the recommendation pertaining to two candidates’ elevation to the Supreme Court.
In his letter, Joseph has cited the Supreme Court judgment in the contempt case involving former Calcutta High Court judge C.S. Karnan to buttress his argument that the matter be referred to a bench of the apex court’s seven most senior judges.
“The government owes a duty to take a call on the recommendation as soon as the same is sent by the collegium. Failure to discharge their duty by sitting over on the recommendations of the collegium, doing nothing, in administrative law, is abuse of power…” he has written.
“The dignity, honour and respect of this institution is going down day by day since we are not able to take the recommendations for appointment to this court to their logical conclusion within the normally expected times,” he has said.
By not implementing the collegium recommendations, Joseph has written, the government is sending a “strong message” to “all judges down the line not to cause any displeasure to the rxecutive lest they should suffer”. He adds, “Is this not a threat to the independence of the judiciary?”
Joseph and Chelameswar were among the four judges who held the unprecedented 12 January press conference to highlight their concerns about the functioning of the Supreme Court.
What is the issue?
In his letter, Joseph refers to the fact that, for over three months, the Modi government has been sitting on the Supreme Court collegium’s recommendation to elevate Uttarakhand High Court chief justice K.M. Joseph and senior lawyer Indu Malhotra to the apex court bench.
A bench headed by Justice K.M. Joseph had, in 2016, delivered a hard-hitting judgment setting aside the President’s Rule imposed in Uttarakhand imposed by the Modi government.
As first reported by ThePrint, the Centre had briefly toyed with the idea of notifying Malhotra’s appointment while taking no action in the case of Joseph. However, the ill-advised move fizzled out after it was pointed out to the law ministry that it went against precedent.
It isn’t just these two names that have been put on hold by the Centre without offering a cogent reason, or returning them to the SC collegium. The list is long and includes recommendations for the appointment of chief justices of several high courts.
Silence of CJI Misra
Despite Chelameswar’s letter, the press conference, questions raised by judicial activists, and now Justice Joseph’s letter, CJI Misra has maintained silence.
There is no clarity on whether he has even raised the issues flagged with the government. Sources in the SC told ThePrint that the issue was not discussed at the recent meetings of the collegium either.
Incidentally, after the Modi government started dragging its feet on appointments recommended by an earlier collegium, the then CJI, T.S. Thakur, constituted a bench and began hearings on the issue, even issuing an ultimatum to the Modi government against holding up appointments without any reason.
In fact, delivering a lecture, CJI Thakur had also spoken out against the need to guard against attempts to “hijack” the process of judicial appointments, underlining the need for the judiciary to remain independent, especially to act as a deterrent against a “tyrannical regime”.
Gopal Subramaniam buckled under pressure. Justice K. M. Joseph should be firm. Some things can be delayed, not denied.