The CJI will redeem his lost name and the judiciary’s prestige if he ensures the collegium meets at the earliest and sends back just one name — Joseph’s.
Controversy refuses to part ways with Chief Justice of India Dipak Misra – whatever he does, or even doesn’t, attracts controversy.
Forget the allegation against him of constituting benches to decide how politically sensitive and controversial cases case will be decided. The biggest and most damning allegation against him is that he is very close to the Narendra Modi government. His critics accuse him of being soft on the government and allowing it to ride roughshod over the judiciary with impunity and without fear of any kind of pushback.
They have a point. Since he took oath of office as the 45th Chief Justice of India, Misra has been unable to get rid of this perception.
But, here is something that will send out a clear-cut message that he is an independent-minded judge, that he is ready to take on the government on the issue of protecting the independence of the judiciary, something that the framers of our Constitution wanted. He must reiterate, at the earliest, the name of Uttarakhand High Court chief justice K.M. Joseph for appointment to the SC. And reiterate only his name.
If, and yes, it is a big if, he actually does that, it will send a clear message down the line — to each and every subordinate court judge in the country — that they must work without any pressure and fear.
Unfortunately, two weeks have passed since the Centre, after sitting on it for over three months, returned the name of Justice Joseph for “reconsideration” while clearing the appointment of the second judge recommended by the collegium, Indu Malhotra. The collegium hasn’t taken a call on the issue so far.
On 2 May, when the five-judge collegium headed by CJI Misra met to discuss the issue, there was a lack of consensus. There were other names that were thrown up. But it is common knowledge that the collegium was sure that the Modi government wouldn’t clear Justice Joseph’s name, which is why it recommended only his name from among the high court chief justices. The other name, Malhotra, was a senior advocate and was being directly elevated to the SC. I even wrote about it here.
Their fears came true when the Centre, in a highly controversial move, sent back the file containing Justice Joseph’s recommendation.
The ball is now in the collegium’s court. And, as head of the institution, which he has a responsibility to protect and shield from the government, the least that CJI Misra can do is to immediately hold a meeting of the collegium and take the lead in persuading his brother judges to reiterate the name.
With the SC already functioning with seven vacancies, and six more judges scheduled to retire by the end of this year, there certainly exists an argument for the collegium to recommend more names at the earliest.
But these are uncertain times. There is no certainty that if the collegium recommends more than one name — Justice Joseph’s plus some other senior HC CJs, the Centre will not again play dirty and clear the other names. It may even indefinitely sit on all names, wait for the composition of the collegium to change after Justice Jasti Chemaleswar retires on 22 June, and then send the complete file back to the new collegium for its views.
Even if the CJI manages to convince his brother-judges to send more than one name, including Justice Joseph, it will be yet another loss of face for the higher judiciary. And, lest we forget, despite the controversies that have become part of our higher judiciary, more Indians have more faith in our judicial system than they have in the executive (government).
CJI Misra must ensure that this faith is not shaken any further.