Govt returns SC collegium recommendation to elevate judge: How the NDA-judiciary conflict unfolded

The government has returned the Supreme Court collegium's recommendation to elevate Uttarakhand High Court Chief Justice KM Joseph, seeking its reconsideration and saying the proposal was not in accordance with the top court's parameters and there was adequate representation of Kerala in the higher judiciary from where he hails.

Justice Joseph headed the bench that had quashed the Narendra Modi government's decision to impose president's rule in Congress-ruled Uttarakhand in 2016.

Justice Joseph, who will turn 60 this June, has been the Chief Justice of Uttarakhand High Court since July 2014. He was appointed a permanent judge of the Kerala High Court on 14 October, 2004 and had assumed charge of the Uttarakhand High Court on 31 July, 2014.

The NDA government's decision to return to the collegium its recommendation came after almost three and half months since 10 January, when his name was cleared by the five-member collegium comprising Chief Justice Dipak Misra and Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph.

File image of Supreme Court of India. PTI

Time and again since then, the members of the collegium had expressed concern over the government sitting on their recommendations to elevate Joseph. The latest communication in this regard was made to the CJI by Justices Gogoi and Lokur, a day before Rajya Sabha Chairman M Venkaiah Naidu rejected the notice of impeachment moved by the Congress-led MPs against the CJI.

The collegium resolution had earlier said it "considers that at present Justice KM Joseph, who hails from Kerala High Court and is currently functioning as Chief Justice of Uttarakhand High Court, is more deserving and suitable in all respects than other Chief Justices and senior puisne Judges of High Courts for being appointed as Judges of the Supreme Court of India."

"While recommending the name of Justice Joseph, the collegium has taken into consideration combined seniority on all-India basis of Chief Justices and senior puisne Judges of High Courts, apart from their merit and integrity," it had said.

Justifying its stand of returning the recommendation, the Centre sent a detailed note to Chief Justice Dipak Misra, giving reasons to the Supreme Court collegium for its decision, including that seniority may not be an important consideration to ensure regional representation.

The law ministry note, addressed to the CJI who heads the five-member apex court collegium, said the proposal to reconsider Justice Joseph's name had the approval of President Ram Nath Kovind and Modi.

"It is also, in our considered view, not in accord with the parameters laid down by the Supreme Court itself in the Second Judges case and reiterated in Third Judges case," it said.

The ministry said "the seniority of judges also plays its own critical role. It is understood that seniority of judges of high court is only maintained at all-India level. Obviously, this is reflective of their seniority and also the parent high court."

"From our records, it is evident that to ensure regional representation, seniority may not have been taken as an important consideration, but in case where the high court concerned is adequately represented in the Supreme Court and also as Chief Justices of different high courts, then this consideration cannot be, and should not be ignored altogether to the detriment and prejudice of other senior judges."

On the acceptance of one of the two proposed names for elevation, the Centre said such segregation of proposals has been done in many cases earlier, including appointment of judges to various high courts and also to the Supreme Court in the interest of expeditious action of appointments and filling up vacancies.

Regarding judges in the top court from Kerala, it said that besides Justice Kurian Joseph — who was elevated as a judge in the top court from the Kerala High Court on 8 March, 2013 — there were two other Chief Justices, Justices TB Radhakrishnan and Antony Dominic, whose parent high court was also the same.

The note said at this stage, the elevation of one more judge from Kerala High Court as an apex court 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 and "forestalls" the claim of other senior chief justices and puisne judges.

Government faces flak over collegium row

The government's action evoked sharp reaction, with the apex court Bar Association chief terming it as "disturbing" and asking it to reconsider the name of Justice Joseph.

Activist lawyer Prashant Bhushan shared the views of senior advocate Vikas Singh, the Supreme Court Bar Association president, even as BJP leader Subramanian Swamy, a regular petitioner in the apex court, said the Congress stand on the issue reflected its frustration.

Swamy's comment assumes significance as the Congress leadership, including P Chidambaram, himself a senior advocate, were critical of the Centre's decision and tweeted that the recommendation of the collegium was final and binding in the appointment of judges.

"Is the Modi government above the law? What is holding up Justice KM Joseph's appointment? His state, or his religion or his judgement in the Uttarakhand case," Chidambaram questioned in a series of tweets.

Swamy found support from former Delhi High Court judge SN Dhingra, who said the public had a right to know why the other high court judges, including chief justices, who were senior to Justice Joseph, were not recommended for elevation to the apex court.

He termed as "out of turn" the recommendation for Justice Joseph and said the government wanted to know what special qualities he possessed.

"Supreme Court has been doing this in the past as well, where without giving reasons it recommended the names. People have a right to know what special qualities Justice Joseph possesses. Are those senior to him and yet not recommended incapable? If yes, then why should they remain at their posts," he asked.

Indu Malhotra to be sworn-in as apex court judge

Senior advocate Indu Malhotra will be administered oath of office by Chief Justice Dipak Misra on Friday at the Supreme Court, making her the first woman lawyer to enter the top judiciary directly.

61-year old Malhotra's name, cleared by the government, was one of the two recommended by the collegium to be elevated to the apex court bench.

The list of the business of the apex court mentions that Malhotra will be sworn-in on Friday.

Earlier in the day, a Law Ministry communique said: "In exercise of the powers conferred by clause (2) of article 124 of the Constitution of India, the President is pleased to appoint Ms Indu Malhotra, to be judge of the Supreme Court of India with effect from the date she assumes charge of her office."

With inputs from PTI