In a move that has evoked sharp reactions from the legal fraternity, the government cleared the name of Senior advocate Indu Malhotra to the Supreme Court while side-stepping Uttarakhand Chief Justice K.M. Joseph. The law minister now has written to the top court asking the collegium to reconsider its recommendation of Justice Joseph.
ThePrint asks: By not elevating Justice K.M. Joseph to SC is the Modi govt proving the dissenting judges right or just promoting seniority?
Expose the vested political interests that are trying to fish in the judiciary’s troubled waters
Raghav Awasthi
Lawyer & RSS member
To my mind, the government is well within its rights to exercise its prerogative over the elevation of Justice K.M. Joseph. It is about time that the Honourable judges of the Supreme Court were made accountable to the representative of the people to the extent permitted by the Constitution. The power to elevate suitable candidates to the Supreme Court of India cannot be exercised in a completely untrammelled fashion. The biggest concern raised by the four judges was in relation to allocation of cases to relatively junior benches. The said concern has been addressed through the allocation of subject-wise rosters. Hence, there is no need for excessive alarmism at all. The judiciary is also not above the law and if there are legitimate concerns about someone’s fitness to hold high office, the said concerns need to be addressed as well.
Even under the collegium system it is not as if the elected government of the day is to have absolutely no say when it comes to the appointment of judges. There are of course some vested political interests that are trying to fish in these troubled waters. It is about time that they were exposed.
The Congress party has absolutely no locus in this regard as it has been guilty of superseding judges and trying to have a ‘committed judiciary’ installed. Unfortunately, it just does not have the electoral strength to do so today. Hence, it is having to make do with smear campaigns and whispers in the media in order to create an impression as if there is an institution that is under threat. The people of India shall surely see through these designs.
Modi government’s pick-and-choose policy will damage the independence of judiciary
Faizan Mustafa
Vice-Chancellor, NALSAR
A few years back, the Supreme Court had called the CBI a ‘caged parrot’. Have we reached the stage where the government wants parrot judges? If letters written by the senior judges are an indication, we have a reasonable apprehension of heading towards it.
Most of our judges have been independent, upright and fearless, but then it is an open secret that several pliant and submissive judges also made it to the highest court. The latest chapter in this story is the controversy about returning the recommendation of the elevation of Justice K.M. Joseph, Chief Justice of Uttarakhand High Court and the PIL seeking a stay of Indu Malhotra that has been rejected. He was initially not transferred to Hyderabad despite the collegium’s recommendation. Subsequently, the collegium recommended his appointment twice to the Supreme Court. As per the law, the government has no choice in the matter once the collegium reiterates its recommendation. But rule of law is hardly a value we cherish anymore.
Justice Joseph has gone out of favour because of his judgment quashing President’s rule in Uttarakhand. In fact, as the High Court there was little choice with him as he was bound by the apex court judgment of S.R. Bommai. Eventually even the Supreme Court bench headed by the current CJI upheld his decision and the Congress government of Harish Rawat had to be restored.
Justice Gogoi and Justice Lokur are right in seeking a full court meeting on judicial side to discuss the issue of the future of the highest court. In fact, immediately after the new government was voted to power, the collegium’s recommendation on Gopal Subramanium was returned. The historic blunder which the then CJI committed was to agree to dropping the name of the eminent lawyer. It is said that he withdrew his name as the CJI was unsure of reiterating it. Today again, it is the most appropriate moment at which the collegium should resolve that either its recommendation be accepted in its entirety or rejected as a whole.
The Modi government’s pick-and-choose policy will damage the independence of the judiciary. Its argument of Justice Joseph’s all-India seniority has no legs to stand on as for the apex court’s appointments, regional representation is always kept in view due to the federal character of the Constitution. Otherwise we have the most judges from Bombay.
Stalling the elevation of Justice Joseph is a direct assault on the independence of the judiciary
Bishwajit Bhattacharya
Senior advocate and former Additional Solicitor General of India
This is a direct assault on the independence of the judiciary. The government has undermined the independence of the judiciary and if the entire Supreme Court doesn’t collectively hold the government in contempt, the institution of the judiciary in India will be irreparably damaged. All the 24 judges of the Supreme Court must stand united and uphold the Constitution so that the government cannot subvert it. The government should have appointed both of the judges together.
While Indu Malhotra’s file has been cleared, there was no need to delay and stall the elevation of Justice K.M. Joseph. This is a very serious matter. Justice Joseph has been one of the most outstanding judges and now that his name has gone back to the collegium, they should immediately reiterate its recommendations to the government.
The reasoning given on 26 April by the government to the collegium is untenable since seven vacancies of judges exist today in the Supreme Court. It is the collegium’s prerogative as to who should be elevated first, and who next. Besides, it is preposterous on the government’s part to assume the collegium has not considered various judgments of the Supreme Court.
Also, for the government to wait for 97 days before raising queries on Justice K.M. Joseph for the collegium’s reconsideration is a clear attempt to impede, if not stall, Justice Joseph’s appointment. This is just because he had delivered a momentous verdict against the government. I think the government is playing with fire. It’s time for the honourable Supreme Court to uphold the majesty of the Constitution.
Seniority cannot be a valid ground to deny or stall the elevation of Justice Joseph
Virag Gupta
Lawyer
Clearing Indu Malhotra’s name for the Supreme Court judgeship while ignoring K.M. Joseph, Chief Justice of Uttarakhand High Court, makes it clear that the government is accepting the collegium’s recommendation in a discriminatory manner. On one hand, the government is defending the Chief Justice of India against impeachment, while on the other delay on accepting recommendations of the collegium headed by the CJI displays its double standards.
The judgment of the Constitution Bench on the National Judicial Appointments Commission has settled the issue on the manner of judicial appointments and as per the same, the government is bound to follow the recommendations of the collegium. The need for reforms in the collegium system by no means can mean the government’s denial to accept recommendations of the collegium.
It is for the collegium to decide upon the unsaid factors like regional representation, religion, caste etc. among the judges. Accordingly, its decision to elevate Indu Malhotra will bolster the presence of women judges in the apex court. Justice Joseph is the senior most in the list of High Court chief justices, while he may only be 42nd in the list of 669 High Court judges. The collegium itself, in unequivocal terms regarding Justice Joseph, has said that he “is more deserving and suitable in all respects than other chief justices and senior puisne judges of High Courts for being appointed as judges of the Supreme Court”.
The tendency of being anti-Modi and anti-government has gone too far
Monika Arora
Advocate, Supreme Court of India
The Centre is within its right to tell the Supreme Court to reconsider its recommendation. Now the collegium will deal with it. The government has given a reasoned letter to the Supreme Court. The first reason given is seniority, that there are 11 chief justices senior to him. The second is the representation of different high courts – the government said 10 high courts were not represented in the Supreme Court, while Uttarakhand High Court Chief Justice K.M. Joseph’s appointment would have taken Kerala’s representation (Joseph’s parent high court is Kerala HC) to two. The government also cited the absence of SC/ST representation in the Supreme Court.
The tendency of being anti-Modi and anti-government has gone too far. It has gone to the extent of being anti-Chief Justice of India as well as anti-judge.
As the CJI said, the plea of Indira Jaising and other lawyers to stay the elevation of advocate Indu Malhotra was “unthinkable, unimaginable, inconceivable”. This has never happened before any court of law. How can a set of lawyers be anguished by the appointment of one individual and the non-appointment of another?
This kind of act should be condemned by one and all.
If your only argument is that Justice Joseph’s appointment was barred because he issued a judgment that went against the government, what about former CJI J.S. Khehar? He wasn’t the CJI when he dismissed the NJAC, but he still rose to the rank.
If the government has some objection/clarifications, they can send the file back or reconsideration to the collegium. Thereafter, the Supreme Court collegium will deal with it and then its recommendations are binding on the government. The entire process has not reached its conclusion.
This was just premature activism by a certain group of lawyers who have taken anti-Modism too far.
Compiled by Divya Narayanan and Deeksha Bhardwaj, journalists at ThePrint.
Illustration by Siddhant Gupta.