Jurist Fali Nariman says government decision on Justice KM Joseph ‘malafide’, sees rise in confrontation

The central government’s decision to send back the elevation file of Uttarakhand Chief Justice KM Joseph to the Collegium for a reconsideration has invoked sharp criticism across the quarters. While the political parties left no time in accusing the BJP of interfering in the functioning of the judiciary, the Bar suggested that the state is ‘cherry-picking’ its judges. Noted jurist Fali Nariman too expressed concerns over the development, terming government’s decision as ‘malafide’.

He told The Indian Express that the decision taken by the Collegium comprising top five seniormost judges including the CJI is final. “If the five-member Collegium of the Supreme Court decides that a certain judge has to be appointed, then its word is final and a contrary decision by the government will be considered malafide,” he told the daily.

The delay in appointment of judges despite recommendations by the Collegium has already triggered bitterness between the government and judiciary for the past two years and the latest turn of events only added fuel to it. The government yesterday sent a letter to Chief Justice Dipak Misra who heads the powerful Collegium, asking him to reconsider the decision to recommend elevating Uttarakhand High Court Chief Justice KM Joseph as a judge in the Supreme Court. The proposal to reconsider, Union Law Minister Ravi Shankar Prasad said, has the approval of President Ram Nath Kovind and Prime Minister Narendra Modi.

The government invoked both the principle of seniority and the proportionality while sending back Justice KM Joseph’s file. The development comes more than three months after the Collegium unanimously recommended his name for elevation.

Nariman predicted that the ‘confrontation’ between the government and judiciary may rise further if the Collegium sends its recommendation back to the government insisting on appointing Justice KM Joseph. He indicated that the current standoff may be linked to the government ‘still smarting’ under the top court’s 2015 decision to strike down the National Judicial Appointments Commission (NJAC).

“The (government) is still very upset about that,” Narimal said.

The NJAC was a body proposed by the government to replace the Collegium for the appointment and transfer of judges to the higher judiciary. It was established in 2014 by amending the Constitution but within six months, the Constitutional Bench of the Supreme Court had struck down the NJAC, terming it ‘unconstitutional’.

On the merits of the letter written by the Law Minister to CJI, Nariman said that the government was entitled to the view it had taken and that the reasons are quite cogent. “They may be right or wrong. Whether this meets with the approval of the Collegium is quite another matter,” he said.

He pointed out that according to the 1993 judgement delivered by Justice JS Verma, the Collegium’s word was final. “The collegium has to say whether they insist that despite this letter Justice Joseph should be appointed or not. The Collegium is the last word,” the internationally recognised jurist said.