Refusing to stay the presidential warrant appointing senior SC woman lawyer Indu Malhotra as an apex court judge, the Supreme Court on Thursday termed a petition filed by senior advocate Indira Jaisingh as “unimaginable,” “unthinkable,” “unconscionable” and “never heard before.”
Rejecting allegations that the Narendra Modi government has “cherry-picked” Malhotra for appointment as the SC judge over Uttarakhand High Court Chief Justice K M Joseph, it said that the government is within its rights to send back a judge’s name for reconsideration and in such an eventuality the Collegium will deal with it in accordance with judicial precedent and the Constitution.
A bench comprising Chief Justice Dipak Misra and justices A M Khanwilkar and D Y Chandrachud took strong objections to Jaising’ plea that Malhotra should not be sworn in as judge on Friday and the central government should be directed to recommend the name of Joseph as well.
“What kind of prayer is this,” the bench said, adding that “the judge-designate (Malhotra) assuming office tomorrow (on Friday) will not affect the career of the other judge (Justice Joseph),” Justice Chandrachud said.
Within an hour after this government communication to the CJI was made known, an urgent mention was made by 100 lawyers of the Supreme Court to stay the appointment of Malhotra.
They said though they were “solidly behind” Malhotra, they were equally anguished by the fact that she was cleared over Justice Joseph.
The lawyers alleged that the “bifurcation” of the two names and freezing the appointment of Justice Joseph was because he quashed imposition of President rule in Uttarakhand in 2016 and revived the Congress government headed by Harish Rawat, dealing a blow to the Modi government at the Centre.
Jaising argued that this “pick and choose” policy by the government was an affront to judicial independence and the rejection of Justice Joseph was a manifestation of the government’s attack on the judiciary.
Both the names of Malhotra and Justice Joseph were recommended at the same time in January by the Collegium, but government cleared Malhotra’s name on Wednesday.
The government cited the All India High Court Judges Seniority List, where Justice Joseph stood at 42 in terms of seniority. Besides, the government said the Kerala High Court was too small a court to be represented by two SC judges.
The Supreme Court already has Justice Kurian Joseph as the fifth senior-most judge.
