The judiciary is at a crossroads in the context of its independence. Recently, while clearing the name of Indu Malhotra, the Government of India sought a reconsideration of the recommendation of Justice KM Joseph.
The Government says, “At this stage, elevation of one more judge from Kerala High Court as a Judge does not appear to be justified as it does not address the legitimate claims of the Chief Justices and Puisne Judges of many other High Courts.” The Government’s viewpoint raises two issues: Justice Joseph is not the senior-most judge in the all-India seniority list. Second, it says the Kerala HC already has one Supreme Court Judge and three Chief Justices of High Courts representing it. Both these can be answered reasonably. First, country-wide seniority may be taken into account but is not the sole determinative factor. Second, Kerala might currently have four senior judges at an all-India level but will soon be down to two with two retirements this year. Further, the answer could be found in the Resolution recorded by the collegium, which states, “The collegium considers that at present Justice KM Joseph, who hails from the Kerala HC and is currently functioning as Chief Justice of the Uttarakhand HC, is more deserving in all respects than other Chief Justices and senior puisne Judges of High Courts for being appointed as a Judge of the Supreme Court.
While recommending Justice Joseph’s name, the collegium has taken into consideration combined seniority on all-India basis of Chief Justices and senior puisne Judges of HCs, apart from their merit and integrity. There is further support from the 1998 Presidential reference, in which it was held: “Where, therefore, there is outstanding merit, the possessor thereof deserves to be appointed regardless of the fact that he may not stand high in the all India seniority list or in his own High Court. All that then needs to be recorded when recommending him for appointment is that he has outstanding merit. When the contenders for appointment to the Supreme Court do not possess such outstanding merit but have, nevertheless, the required merit in more or less equal degree, there may be reason to recommend one among them because, for example, the particular region of the country in which his parent High Court is situated is not represented on the Supreme Court Bench. All that then needs to be recorded when making the recommendation for appointment is this factor.”
Thus, the recommendation of the collegium had gone into the merit and suitability of the particular case of Justice Joseph. It is nobody’s case that anything relating to integrity and competence has been in the arena of any adverse consideration. The objections raised by the Government on the whole appear to be highly laboured and have no core substance. All eyes are on the Supreme Court. The collegium has already been alerted. It will soon decide on the “reconsideration” of the case of Justice Joseph. But if some of the judgments delivered by the Judge as Chief Justice of Uttarakhand HC may not have been palatable to some persons in power, they have to yield in honour of independence of judiciary. Justice Joseph’s independent attitude and impeccable integrity have not been an issue, but some superficial issues have clouded the decision-making process.
The result is an avoidable one. If the collegium recommends the name again, there is hardly any choice for the executive government as per the understanding of the law at the moment. Inter-se seniority is a consideration when a puisne judge is made a Chief Justice, but it is not sacrosanct in elevation to the Supreme Court. There are instances of senior judges and Chief Justices being overlooked in favour of a more deserving candidate of outstanding merit. Some of these decisions may be subjected to criticism, but there is no objective criteria under which the Supreme Court collegium is to draw fresh talents for the highest court only in the order in which an all-India seniority list of HC judges has been drawn up. Coming to regional imbalances and under-representation, unless something is drastically wrong, this cannot be taken as one of the tests to demolish the candidature of a person, who is otherwise qualified and has a valid recommendation. Not surprisingly, therefore, the decision of the Central Government has to be taken with a pinch of salt. The testing time for the Supreme Court has begun with a new chapter. One can be sure that the court as an “institution” shall rise to the occasion and not be pressurised or browbeaten.
The tenacity of the Indian judiciary is undergoing an evaluation at the topmost level. It is but appropriate to reiterate the recommendation, which had no tangible or tenable criticism against it. A viewpoint based on several extraneous factors cannot be the guiding principle in the appointment of persons, who acquire the status of an “institution”. Talking of “institutions”, they have to be developed over time. A national character comes out of norms of inter-personal dealings and must have enduring qualities.
It must be noticed that both the objections taken by the executive government in the case of Justice Joseph appear to have been motivated by a desire to stop or delay the concerned elevation to the SC. The SC’s testing hour has come because at the highest level an informed recommendation is being resisted on flimsy and almost extraneous considerations.
The SC’s appropriate course would be to “reiterate” the recommendation after “reconsideration” of the proposal in the light of the Government’s observations. The dictum laid down in the third Judges case will come into operation. The judgment says, “If after due consideration of the reasons disclosed to the CJI, that recommendation is reiterated by the CJI with the unanimous agreement of the Judges of the Supreme Court consulted in the matter, with reasons for not withdrawing the recommendation, then that appointment as a matter of healthy convention ought to be made.” The crucial words in this paragraph are “unanimous agreement”. Thus, if even one of the five has a rethink, the Government will have succeeded in its attempt to block Justice Joseph. At this crucial juncture, the Supreme Court should not be a divided house. As a crucial pillar of democracy, the judiciary has been put to test with avoidable assertions by the executive.
A comment has been heard in many quarters. It is stated that on April 25, 1973, three of the seven judges, who delivered the majority judgment in the Kesavananda Bharati case which went against the Government’s position were superseded for the position of CJI. Justices JM Shelat, KS Hegde and AN Grover were superseded by Justice AN Ray, who was known to be in tune with the Government. This supersession of 1973 provided the backdrop for the Emergency of June 1975. During the Emergency, we had a weaker Supreme Court which went on to hold that the very right to life under Article 21 of the Constitution stood suspended. There was an attempt at reviewing the judgment as in the Kesavananda Bharati case. The High Courts, by and large, gave a better account of themselves whether in the case of ADM, Jabalpur or many other such ones. It is worth noticing that again on April 25, 2018, the Government has chosen to appoint Indu Malhotra to the SC and has, for the moment, chosen not to endorse the case of Justice Joseph. Both the names were recommended by the collegium through the same proceedings. In this background, the manner of exercise of power by another organ of the state leaves many things to be desired. The appointment of judges in the SC should attract the attention of all of us, who should become alert to uphold the dignity of judiciary. This “independence” is inalienable and its protection concerns all of us.
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha. (jayantdas@hotmail.com)