The central government’s move to elevate advocate Indu Malhotra as Supreme Court judge and reject the nomination of Chief Justice of Uttarakhand KM Joseph has failed to garner a favourable response from two former Chief Justices, with questions being raised on how Chief Justice of India Dipak Misra could allow the government do this. Former Chief Justice Rajendra Mal Lodha has said by taking such steps, the government has struck “at the very heart of the independence of the judiciary.” He also said that by “segregating recommendations”, the government has thrown “plans of the Collegium for seniority or ensuring a certain succession of future Chief Justices out of the window”.
“By simply sitting over the file for weeks and then picking one and not the other, a whole new succession comes into play. This is interference in the judiciary, apart from, of course, rejecting names that the government doesn’t find favourable,” former CJI Lodha said. “The Chief Justice of India, in such a situation, should immediately call a meeting of the collegium and take up the matter with the government. If the reiteration must be done, it must happen immediately. The Chief Justice cannot sit over the file either, indefinitely, as can’t the government,” Lodha underlined.
Notably, a similar segregation was seen during Justice Lodha’s tenure as Chief Justice when the BJP-led NDA government segregated one out of four recommendations of the Lodha-led collegium. Referring to the 2014 incident, Justice Lodha said: “The Law Ministry, without my knowledge or consent, when I was out of the country, segregated four recommendations of the collegium and had certain problems with (the proposal to elevate) Gopal Subramanium and did not appoint him. This was very wrong. I wrote to the Law Minister on June 30, immediately upon my return that it was wrong and should not happen again in the future, that is, be done with any Chief Justice, henceforth.”
The view has found resonance with another former CJI, Justice TS Thakur, who has termed the development as “unfortunate”.
Former Chief Justice of the Delhi High Court Justice A P Shah also expressed his reservation over the issue. “Bit by bit, the primacy of the collegium is being conceded…I am a bit surprised that the CJI said in open court that there was nothing wrong in the government returning the file. I doubt if he has consulted his colleagues in the collegium before making this statement.”
“Clearly the reason (Justice Joseph’s file was rejected) is his judgment against the Centre in 2016. The points raised about his so-called seniority are not relevant and he is the most suitable person for the job. As far as representation from Kerala is concerned, Justice Kurian Joseph, the only other Kerala Judge will retire in a few months,” Shah asserted.
