Govt bound to appoint Joseph if collegium reiterates, say experts: Updates

The Narendra Modi-led central government on Thursday sent back for reconsideration the Supreme Court collegium’s recommendation for the elevation of Uttarakhand High Court Chief Justice K M Joseph to the apex court. The collegium had recommended the names of Joseph and senior advocate Indu Malhotra for elevation to the Supreme Court. The latter’s elevation was accepted.

Now, the Supreme Court collegium can either withdraw its recommendation on Joseph or choose to stick to it – in the latter case, it will be binding on the government to accept.

Earlier in the day, even as the recommendation had been on hold, the Congress party had said PM Modi's "revenge politics" against the judiciary and "conspiratorial suffocation" of the Supreme Court had been exposed again. The Modi government had taken this step in retribution for quashing presidential rule in Uttarakhand, the Congress alleged. The allegations came especially as the appointment of senior advocate Indu Malhotra as a Supreme Court judge was readily accepted.

Further, reports emerged that Chief Justice of India (CJI) Dipak Misra was not consulted and the government unilaterally made its decision to "segregate" the recommendations made by the collegium for elevation. On January 22, the Supreme Court collegium's file recommending the elevations had reached the law ministry. Legal experts had cautioned the government against accepting one of the recommendations while keeping the other one on hold. A Chief Justice of India had told the law ministry not to "segregate" names sent for appointment together.

The government's latest move came a day after it was reported that two senior judges of the Supreme Court – Ranjan Gogoi and M B Lokur – had urged CJI Misra to hold a full court to discuss the institutional issues plaguing the higher judiciary. Further, days earlier, the Opposition caused a political storm by sending a notice to impeach CJI Misra which failed as Rajya Sabha Chairman Venkaiah Naidu rejected it, sparking strong protests from the Congress, which said that it would move the Supreme Court over the matter.

Here are the top 10 developments around Indu Malhotra's likely elevation to SC and the sending back of Chief Justice Joseph's name to the Supreme Court collegium:

1. Govt bound to appoint Justice K M Joseph if collegium reiterates, say experts: The government would be bound to appoint Uttarakhand High Court Chief Justice K M Joseph as a Supreme Court judge if the collegium reiterates its recommendation, legal experts opine.

Former High Court judges S N Dhingra, Ajit Sinha and senior advocates Vikas Singh and Dushyant Dave were concurrent in their opinion that it would be binding on the government to elevate Justice Joseph to the apex court if the collegium sticks to its recommendation.

All of them were categorical that if any name on reconsideration is cleared, the government has to act on it.

However, they said there was no mention of any time frame for the government to implement the collegium's recommendation.

2. Congress known for treating judiciary unfairly, says Ravi Shankar Prasad: Law Minister Ravi Shankar Prasad slammed the Congress for attacking the Modi government over the stalling of the appointment of Justice K M Joseph to the Supreme Court, alleging that it was the opposition party which had a "record" of meting out "unfair treatment" to the judiciary.

The Congress criticised the government move saying that the independence of the judiciary "is in danger" and asked if it would now speak in one voice to state "enough is enough".

Responding to the Congress's criticism, Prasad said: "The whole record of the Congress party is littered with instances of superceding judges who were found to be inconvenient...the legendary judge HR Khanna who gave the dissenting judgement during Emergency and upheld the freedom of Indians was denied the post of Chief Justice even for two months and superceded by a junior," according to PTI.

He alleged that the "real provocation" for imposition of emergency was a judgement of the Allahabad High Court against Indira Gandhi.

"They (the Congress) have meted out unfair treatment to the judiciary during their rule," Prasad said.

3. Govt returns SC collegium proposal on Justice Joseph, says his elevation not "appropriate": In a fresh confrontation with the judiciary, the government today told the Supreme Court collegium to reconsider its proposal to appoint Uttarakhand High Court Chief Justice K M Joseph to the top court, saying the elevation may not be "appropriate".

The government received immediate support from the collegium head, Chief Justice Dipak Misra, who said the executive was well within its rights to reject Justice Joseph's name while accepting the second name even though both were recommended for elevation together by the collegium. The names of Malhotra and Justice Joseph were recommended by the collegium in January.

In a letter to Justice Misra, Union Law Minister Ravi Shankar Prasad said the government's rejection of Justice Joseph's name has approval of the President and the Prime Minister and also flagged that the SCs/STs have no representation in the Supreme Court since long.

"The proposed appointment of .... Joseph as a Judge of the Supreme Court at this stage does not appear to be appropriate," Prasad said in the letter. "It would also not be fair and justified to other more senior, suitable and deserving Chief Justices" and senior judges of various High Courts.

In theory, the collegium can still reject the government's proposal and re-send Justice Joseph's name to the Law Ministry, which can then decide the future action.

The government's opposition to Justice Joseph's elevation is likely to deepen the rift between the executive and the judiciary.

4. Indu Malhotra becomes first woman SC judge to make it from Bar: Senior advocate Indu Malhotra was today appointed a Supreme Court judge, making her the first woman lawyer to directly enter the top judiciary.

A Law Ministry communique said: "In exercise of the powers conferred by clause (2) of article 124 of the Constitution of India, the President is pleased to appoint Ms Indu Malhotra, to be judge of the Supreme Court of India with effect from the date she assumes charge of her office."

Malhotra, who was designated as a senior advocate in 2007, would be the first woman advocate to be directly appointed as the judge of the Supreme Court.

Her name was cleared by the SC collegium on January 10 and a resolution of the apex court said, "In our considered opinion, at present, Indu Malhotra, Senior Advocate, is eminently suitable for being appointed as a Judge in the Supreme Court."

5. SC refuses to stay warrant of appointment of Indu Malhotra: The Supreme Court today refused to stay the Presidential warrant appointing senior woman lawyer Indu Malhotra as an apex court judge and termed the plea of advocates on it as "unimaginable," "unthinkable," "unconscionable" and "never heard before."
A bench of Chief Justice Dipak Misra took strong note of submission of senior advocate Indira Jaising that Malhotra be not sworn in as the apex court judge and the Centre be directed to recommend the name of Uttarakhand High Court Chief Justice K M Joseph as well.

"What kind of prayer is this," the bench, also comprising Justices A M Khanwilkar and D Y Chandrachud, said, adding that the Centre is "well within its right to send back the recommendation for reconsideration."

"Supposing the government is sending it for reconsideration, it will be seen. You are saying 'stay the warrant.' It is unthinkable, unconscionable, unimaginable and if I may add 'never heard before'," the CJI said.

ALSO READ: Govt interfering in judiciary, says Sharad Yadav

6. Chidambaram hits out at Centre: In a slew of tweets, former finance minister P. Chidambaram on Thursday hit out at the Centre after only one of the judges was appointed as the Supreme Court judge out of the two recommended by the Supreme Court collegium earlier this year.

Chidambaram took to Twitter and wrote, "As the law stands now, the recommendation of the SC collegium is final and binding in the appointment of judges. Is the Modi government above the law?" asked the former finance minister.

"What is holding up Justice K M Joseph's appointment? His State or his religion or his judgement in the Uttarakhand case?", Chidambaram asked on Twitter.
 

The senior Congress leader questioned the rationale behind the move and asked whether the appointment of Justice Joseph was held back due to his religion.

7. Congress slams Centre for stalling Justice K M Joseph's elevation: The Congress on Thursday accused Modi of indulging in "revenge politics" by "refusing" to clear the elevation of Justice Joseph to the Supreme Court. The "judiciary is under the most vicious attack ever" and "totalitarianism will stump democracy" if the nation does not rise now, Congress communications in-charge Randeep Singh Surjewala alleged.

The Congress said that the government was taking revenge from Justice Joseph for quashing presidential rule in Uttarakhand.

"Central Government only wants judges whom they prefer. Law says appointment will be made on collegium's choice but this government ignores the collegium's recommendation," Senior Congress leader Kapil Sibal said.

Sibal also quoted a notice released on the Supreme Court's website in January that hailed Joseph as highly deserving.

8. Govt did not consult CJI Misra: In giving its nod to Malhotra's elevation and sending back Joseph's name, the government decided to "unilaterally" segregate the names sent by the apex court's collegium, without consulting CJI Misra, News18 reported on Thursday. The term "segregation" here refers to proceeding with one recommendation and not on the other. 

On Wednesday, it was reported that if the government went ahead with "segregation" of the recommendations, Law Minister Ravi Shankar Prasad might write to CJI Misra about its intention. On January 22, the Supreme Court collegium's file recommending the elevation of Justice Joseph and Malhotra reached the law ministry. After processing the file in the first week of February, the recommendations were kept in abeyance as the government wanted to elevate only Malhotra.  

Collegium disregarded seniority: The government feels that while recommending the name of Justice Joseph, the collegium has disregarded seniority and regional representation. He is 42nd in seniority among the 669 high court judges.  

9. Legal experts warned govt over unilateral segregation: Sources told news agencies that when legal experts were asked whether the collegium's recommendation could be segregated, they reminded the government of a letter written by then Chief Justice of India R M Lodha in June 2014, in which he had made it clear that the executive could not segregate recommendations without prior approval of the collegium. Justice Lodha had written to the government when it had decided against elevating senior lawyer and former solicitor general Gopal Subramanium to the Supreme Court, while accepting other recommendations of the collegium. But in the meantime, Subramanium withdrew his consent to be recommended for judgeship. 

10. Justice Joseph 'more deserving' than other chief justices, says SC: While recommending the name of Justice Joseph for the top court, the collegium had said that he was "more deserving and suitable in all respects than other chief justices and senior puisne judges of high courts for being appointed as judge of the Supreme Court of India". 

The collegium had taken into consideration the combined seniority of chief justices and senior puisne judges of high courts on an all-India basis, apart from their merit and integrity, the body of top five judges of the Supreme Court had said.

Justice Kurian Joseph calls for 'surgical intervention': Irked over the government's delay in clearing the collegium's recommendation to elevate Justice K M Joseph and advocate Indu Malhotra to the apex court, Justice Kurian Joseph had written to the CJI contending that the "very life and existence" of the institution was "under threat" and a "surgical intervention" was required. 

With agency inputs