Irked over the government's delay in clearing the Collegium's recommendation to elevate a judge and a senior woman advocate to the apex court, Supreme Court judge Justice Kurian Joseph has written a letter to the Chief Justice of India Dipak Misra contending that the "very life and existence" of the institution was "under threat" and a "surgical intervention" is required.
The apex court Collegium, headed by the CJI, had in January sent to the Centre the names of senior advocate Indu Malhotra and Uttarakhand high court Chief Justice K M Joseph for their appointment as judges in the apex court. However, the Centre is yet to decide on the names.
Justice Joseph, who is a member of the collegium, said it was the "government's duty" to act on the recommendations of the names and dubbed the executive's failure to discharge their duty as "abuse of power.
"Today, we complete three months since we resolved to recommend senior advocate Indu Malhotra and Justice K M Joseph for appointment as Judges of the Supreme Court. To my limited information, it is the first time in the history of this Court where nothing is known as to what has happened to a recommendation even after three months. Government owes a duty to take a call on the recommendation as soon as the same is sent from 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. More than anything else, it sends a wrong message which is loud and clear to all Judges down the line not to cause any displeasure to the Executive lest they should suffer. Is this not a threat to the independence of the judiciary," asked Justice Joseph in his letter, which has now become public.
He requested the CJI to set up a bench of seven senior-most judges to take up the matter of appointments to its logical conclusion.
"When Justice Karnan challenged the dignity of the Court, you may kindly recall that we met in Full Court and resolved to take the issue suo motu on judicial side. The Full Court was also of the view that in such important matters the first seven Judges should sit and deal with the same....
"Is not the present a more grievous situation? In Justice Karnan's case if it was a threat to the dignity of the court, the present one is a threat to the very life and existence of the institution...I am of the view that following the precedent in Justice Karnan's case, we should take up the matter on the judicial side in a Bench of first seven or more as you please. I mentioned the first seven only because of the mandate of the Full Court in Justice Karnan's case," he said.
Justice C S Karnan was a former judge of Calcutta High Court who had made serious allegations against the judges of the apex court.
In an unprecedented order, the top court had held the controversial judge guilty of contempt of court and sentenced him to jail for six months.
Referring to the vacancies, he said the top court was reeling under pressure of work and working with a strength of 24 as against 31 and "the dignity, honour and respect of the institution was going down day by day" as the recommendations made by the court were not being taken to take their logical conclusion.
"You may recall, and as has been the practice, it was our decision to send the names in a phased manner so that there may not be any administrative or other difficulties. We are not able to sit for the second phase since the fate of the first phase is not yet known.
"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 time. I am more worried about the irreparable injury that is being caused by the wrong message sent to the Judges down the line. It appears, your personal efforts have not been fruitful," he said.
Justice Joseph sought urgent intervention from the CJI, stating that if there is no normal delivery on completion of the gestation period, what is urgently done is a Caesarean section. Unless such a surgical intervention is made at an appropriate time, the child in the womb dies.
"Therefore, I request you, in the interest of the this great institution and independence of the judiciary for which all of us have fought so vigorously and tirelessly, to have an appropriate Bench in the lines of the precedent set by Justice Karnan's case constituted forthwith before the child dies, otherwise I feel, history will not pardon us," Justice Joseph said.
The copy of the letter has been sent to the other fellow judges.
The Collegium is headed by the CJI and has Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Justice Joseph as its members.