Union Law Minister Ravi Shankar Prasad on Thursday sent a letter to Chief Justice Dipak Misra who heads the five-member collegium, asking him to reconsider its recommendation to elevate Uttarakhand Chief Justice KM Joseph as a Supreme Court judge. The decision triggered a fresh war of words with many questioning whether the government was right in overturning the decision of the collegium. The charge against the government over its decision has been varied — while political parties said that the government was interfering in the functioning of the higher judiciary, experts said that the government is bound to make appointments according to the recommendations of the collegium.
At least two former chief justices — RM Lodha and TS Thakur — have expressed concerns over the rising standoffs between the government and the judiciary. They said that the government’s decision to approve the collegium’s recommendation to elevate senior lawyer Indu Malhotra and, at the same time, reject Justice KM Joseph’s recommendation ‘strikes at the very heart of the freedom of the judiciary’. Noted jurist Fali Nariman termed the decision ‘malafide’, but added that the government is entitled to its view and that the points argued by it are quite cogent.
A look at the grounds cited by the government to reject the collegium’s decision and the arguments against it:
Seniority
The government in its letter to the CJI stated that Justice KM Joseph was at the 42nd position on the All India High Court Judges’ Seniority list. But sources said that he is the seniormonst judge in a High Court, The Indian Express reported. The Collegium had earlier said that Justice KM Joseph is the more suitable and deserving to serve as a judge in the Supreme Court in all respects than other Chief Justices and judges of the High Courts. He was appointed as a permanent judge in the Kerala High Court on October 14, 2004 and later Chief Justice of Uttarakhand on July 31, 2014. He will turn 60 in June. Judges of the Supreme Court retire at 65.
Critics, however, point out that there is no precedent to go by seniority for elevation to Supreme Court. The Indian Express citing sources reported that the government in February 2017 elevated Justices Mohan M Shantanagoudar and S Abdul Nazeer of the Karnataka High Court when two judges H Ramesh and HG Ramesh of the parent court were senior to Justice Nazeer. Justice Navin Sinha and Deepak Gupta were appointed as judges last year in the Supreme Court when there were many in the seniority list.
Representation from certain HCs
The government argued in its letter that certain High Courts have currently no representation in the Supreme Court. If this is to be taken into consideration, critics said that the government wouldn’t have appointed two judges from Karnataka High Court in 2016 and two from the Bombay High Court last year. Currently, Justice Kurien Jospeh, who was appointed as a SC judge in March 2018, is from Kerala. He will retire from the office in November later this year. Currently, there are five judges in the Supreme Court whose parent court is Bombay High Court.
No representation from SC/ST
The government said that the Supreme Court has no representation from the SC/ST. The IE report said that even if the government decides to go ahead with the Collegium’s recommendation on Justice KM Joseph, there would be still vacancies. And the government can fill these vacancies by giving preferences to the judges from the SC/ST section of the society.
Two Chief Justices from Kerala
At present, there are 24 judges in the Supreme Court against a maximum strength of 31. The government said that there are two other CJs of High Court whose parent High Court is Kerala High Court. However, the IE report pointed out that there are also two CJs who parent HC is Bombay High Court.
What former CJIs said
Former CJI RM Lodha said that the decision strikes at the hear of the freedom of judiciary. He said “there is an interference in the judiciary” and suggested that the CJI should call a meeting of the Collegium without any delay and take up the matter with the government. “If the reiteration must be done, it must happen immediately,” he said, adding that the CJI can’t sit over the file indefinitely.
Justice Lodha recalled that during his tenure as the CJI, the government had in 2014 segregated one of the four names recommended by the Collegium. He underlined that when he was outside the country the Law Ministry had certain problems with the Collegium’s recommendation to elevate Gopal Subramanian. He said that this was done by the Law Ministry without apprising him. When he returned, Justice Lodha said that he had written to then Law Minister saying it was wrong and should not be done in future. Justice Lodha had served as the Chief Justice between April 2014 and September 2014.
Another former CJI TS Thakur also said that the development is a matter of serious concern and termed the decision unfortunate.
Former Delhi High Court judge AP Shah said that he is surprised by the CJI’s remark that it is okay for the government to return the file to the Collegium. He doubted that if CJI Dipak Misra had consulted his colleagues in the Collegium before making this statement. He said that Justice KM Joseph is the right person for the job. He said that government’s arguments over representation from Kerala is not right as Justice Kurien Joseph is due to retire in November. He added that the so-called seniority argument is also not relevant and sought to blame Justice Dipak Misra for allowing the transgression.
“Despite the transgression demonstrated by the Executive, the Chief Justice is not even calling a meeting and is largely responsible for allowing the transgression,” he said. Justice AP Shah said that the government once again delayed the Collegium’s decision on Justice KM Joseph’s because of his 2016 ruling to strike down the President’s Rule in Uttarakhand. The Collegium had earlier recommended the government to transfer him from Uttarakhand to Andhra Pradesh but this decision was delayed as well.
What Congress said
Senior Congress leader and former Union minister Kapil Sibal blasted the government for not abiding by the Collegium’s recommendation. He said that the law clearly states that the Collegium will decide whom to appoint as a judge. But the government, he said is bent upon overlooking its recommendations. He said that ‘if they don’t like you, they will not appoint you’. He asked the government to have the courage to say ‘I will not appoint him’. “Why try and make fool of the public?” he said.
Former Union minister and another senior Congress leader P Chidambaram said that the government was doing this because of Justice KM Joseph’s 2016 ruling.
The party also said that PM Narendra Modi was practising ‘politics of revenge’ by stalling the elevation of Justice KM Joseph.
The CPM demanded an intervention from the President to save the judiciary. In a statement issued on Thursday, the party accused the BJP of unwarranted intrusion in the selection process. It said that the latest turn of events will affect the independence of the judiciary in the country.
BJP’s defence
Addressing the media later, Law Minister Ravi Shankar Prasad said that the Congress party has no moral right to question the government. He said that the party has a history of meeting out unfair treatment to the judiciary. Law Minister Ravi Shankar Prasad cited past instances of the Congress government to counter its allegations. He said that BJP leaders including Narendra Modi, Rajnath Singh and others had fought against the Congress’ Emergency, freedom of media and independence of judiciary. “The Congress party should stop lecturing us,” he said.
He also recalled how the Congress government had suppressed Justices JM Shelat, KS Hegde and AN Grover before the Emergency. He said that Justice HR Khanna who had delivered ruling in ADM Jabalpur and upheld the freedom during the time of Emergency was denied the post of CJI by the Congress.
Prasad also rubbished allegations that the government refused to clear Justice KM Joseph’s name because of his 2016 ruling.
