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Govt returns collegium proposal on Justice Joseph, says his elevation to SC not "appropriate"

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Press Trust of India New Delhi
The government today turned down a Supreme Court collegium proposal to elevate Justice K M Joseph to the top court, saying his promotion may not be "appropriate" and needs to be reconsidered, a decision that evoked sharp reactions from legal fraternity and opposition parties.
The government's stand on 59-year-old Joseph, Uttrakhand High Court Chief Justice who has over two years of service left, is being seen as widening of the rift between the executive and the judiciary, which have been at loggerheads over issues like appointment and transfer of judges.
However, 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, Law Minister Ravi Shankar Prasad said the government's decision that the collegium should reconsider its proposal for Justice Joseph's elevation has approval of the President and the Prime Minister. Making its case, Prasad also flagged that the SCs/STs have no representation in the apex court since long while Kerala High Court, Joseph's parent court, is sufficiently represented in the top judiciary.
The last Dalit judge in the Supreme Court was K G Balakrishnan, who retired as Chief Justice of India in May 2010.
Prasad said the proposed appointment of Joseph "at this stage does not appear to be appropriate" and it would also not be "fair and justified to other more senior, suitable and deserving Chief Justices" and senior judges of various High Courts.
The government's decision evoked sharp reactions with the SC Bar Association President Vikas Singh terming it as "disturbing" and the main opposition party, Congress, asserting that the independence of the judiciary "is in danger" and asking if it would now speak in one voice that "enough is enough".
Congress leader P Chidambaram said, "What is holding up Justice K M Joseph's appointment? His State or his religion or his judgement in the Uttarakhand case? 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?"

Activist lawyer Prashant Bhushan alleged that the government was trying to "erode and destroy" the independence of judiciary by not appointing those recommended by the collegium.
"It is very shameful and shocking for a government which talks about the independence of judiciary to try and erode the independence of judiciary by sitting on appointment of people that it doesn't like," Bhushan said.
In a ruling in 2016, Justice Joseph had cancelled President's rule in Uttarakhand and brought back to power the then Congress government of Harish Rawat in the state. The judgement was seen at that time as a major setback to the BJP-ruled government at the Centre.
Today's development is being seen as the latest point of confrontation between the executive and the judiciary.
After the SC struck down a law to allow the government to have a larger say in appointing judges, the two have not been able to finalise the Memorandum of Procedure -- a document to guide appointment and transfer of SC and HC judges.
Besides, two senior judges of the apex court, justices J Chelameswar and Kurian Joseph, have flagged issues to suggest that the executive was constantly overruling the recommendations of the judiciary.
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.
Meanwhile, the apex court rejected a plea of senior advocate Indira Jaisingh to stay Malhotra's appointment, notification for which was issued this morning.
"...the government has been constrained to segregate the recommendation of the Supreme Court...such segregation of proposals has been done in many cases earlier, which include appointment of judges to various HCs and even the SC in the interest of expeditious action on appointments," Prasad told Justice Misra.
In June 2014, the then Chief Justice of India R M Lodha had written to the government making it clear that the executive cannot segregate recommendations without prior approval of the collegium. This had happened when the government had decided against elevating former solicitor general Gopal Subramanium to the top court, while accepting other recommendations of the collegium, a group of five senior most judges of the Supreme Court that decides on appointment of the apex court judges.
But in the meantime, Subramanium withdrew his consent to be recommended for the judgeship.
In his six-page letter this morning, Prasad said Justice Joseph is placed at number 42 in the all-India high court judges seniority list and also there are 11 chief justices senior to him.
Prasad also said the high courts of Calcutta, Chhattisgarh, Gujarat, Rajasthan, Jharkhand, Jammu and Kashmir, Uttarakhand, Sikkim, Maniur and Meghalaya have no representation in the top court.
Quoting two SC judgements, the letter also said that senior HC judges should entertain hopes of elevation to the SC and the CJI and the collegium should bear this in mind.
While recommending the name of Justice Joseph, the collegium had said that he is "more deserving and suitable in all respects".

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First Published: Apr 26 2018 | 8:45 PM IST

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