A day before the historic oath-taking by first woman senior counsel Indu Malhotra as a judge of the Supreme Court, controversy surrounded the Government’s decision to ask the SC Collegium to reconsider the elevation of Justice KM Joseph to the apex court.
A group of 100 lawyers opposing the “cherry-picking” by the Centre demanded stay on the Presidential warrant appointing Malhotra.
Dismissing such a demand as “unconscionable” and “inconceivable”, a Bench headed by Chief Justice Dipak Misra said never before has a warrant of appointment of a judge been challenged in this manner. Mentioning on behalf of the signatory lawyers who made a joint petition, senior advocate Indira Jaising sought an urgent hearing on the matter, a little after Union law Minister Ravi Shankar Prasad told media persons that he has written to the Collegium to reconsider elevation of Justice Joseph, currently Chief Justice of Uttarakhand High Court, and ranked 42nd in the All-India seniority list.
Prasad’s letter states that the decision to reconsider Justice Joseph’s name has “approval” of the President and the Prime Minister and also raises the issue of non-representation of SCs/STs in the Supreme Court Bench since long.
He said, “It would also not be fair and justified to other more senior, suitable and deserving Chief Justices and senior judges of various High Courts if Joseph’s name goes through.”
Even on the plank of regional representation in the top court, the letter said, “Kerala High Court (parent HC of Justice Joseph) has adequate representation in the Supreme Court (Justice Kurian Joseph) and among Chief Justices in various High Courts (Justice TB Radhakrishnan, Chief Justice of Chhattisgarh High Court; and Justice Antony Dominic, Chief Justice of Kerala High Court).”
But the joint petition by lawyers requested the CJI not to misunderstand their petition to target any judge in particular. Jaising said, “Don’t mistake us as we have nothing against Malhotra. The bar stands solidly with her. But we are worried about the pick and choose policy adopted by the Government to keep one name pending while clearing the other. The two names (of Malhotra and Joseph) cannot be bifurcated and doing so amounts to executive interference with independence of judiciary. Ultimately it affects the dignity of the Collegium and the Supreme Court which recommended both names.”
The Bench, also comprising Justices AM Khanwilkar and DY Chandrachud, found the petition “premature” as it felt the Government was well within its rights to return a name for reconsideration. Jaising intervened to suggest that if this is the case, she had no grievance. But she highlighted the concern that a name is being held back by the Centre because some judgments passed by the judge in question are “unpalatable”.
Justice Chandrachud asked Jaising that if it was a case where Government does not return a name for reconsideration, there could be a valid constitutional question that may arise as to why a name is withheld as he loses on seniority if other names are cleared in the meantime.
But the present case was not held to be a fitting case to explore this question. Justice Chandrachud said, “There can be a situation where we clear 30 names for High Court. Going by your argument, if 22 names get cleared and 8 are held back, then the entire lot of 30 should be held back. How can High Courts function this wayIJ Or is it that you say that should be different standards for High Courts and Supreme Court in such cases.”
Jaising reiterated that her concern was not her own but of 100 lawyers at the bar, some of whom are senior advocates who are worried that when the Government approves one name but withholds another, it must take Court’s permission. The CJI said, “There is no precedent that Court’s view must be taken. If the Government sends the file for reconsideration, it will be considered as per our judgments in the Judges Appointment case of 1993 and 1998. Butt staying the warrant of appointment cannot be imagined.”