Jurists divided on govt's decision to block Justice KM Joseph's elevation as SC judge; Congress criticises move

New Delhi: The government’s action of accepting only one of the two names recommended by the collegium for elevation as Supreme Court judges, today evoked sharp reaction with the apex court bar association chief terming it as “disturbing” and asking it to reconsider the name of Justice K M 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. [caption id=“attachment_4342215” align=“alignleft” width=“380”]  File image of Justice KM Joseph. News18[/caption] “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. Dealing a major blow to Modi government, a bench headed by Uttarakhand High Court Chief Justice KM Joseph in 2016 had quashed the imposition of President rule in the state and had revived the Congress government headed by Harish Rawat. The reactions of Chidambaram and others came amidst reports that the government had cleared the appointment of senior advocate Indu Malhotra as a judge of the Supreme Court, but not that of Justice Joseph. Malhotra will be the first woman judge to be appointed to the top post directly from the bar. Meanwhile, Law Ministry sources said the government has asked the collegium to reconsider the recommendation to elevate Justice Joseph as a judge of the top court. SCBA president Vikas Singh, speaking in his individual capacity, expressed concern over the delay in the appointment of Justice Joseph and said “this kind of interference by the executive is definitely uncalled for”. “This elevation is very wrong as it disturbs the seniority in the Supreme Court. We have seen in recent past how important seniority is in the apex court. Judges are being labelled as junior judges and said that they were not fit to hear sensitive matters. So tomorrow if somebody says Justice Joseph is a junior judge and not fit to hear a particular matter, it will be very sad. “Government will be responsible. This kind of interference by the executive is definitely uncalled for. By delaying this, they have definitely interfered in seniority rules and in that sense they have interfered in the functioning of judiciary. A very serious matter. The civil society and the judges of the Supreme Court in full court should discuss and take it up with the government,” Singh told PTI. Swamy said, on the issue of delay in Justice Joseph’s appointment, that the Congress party is just frustrated. “On one hand, they accuse the CJI being inclined to BJP and on the other, they are saying we have ignored him. The Congress party is just frustrated,” he said. Bhushan was vocal in criticising the Centre and alleged that the government was trying to erode and destroy the independence of judiciary by not appointing those recommended by the collegium. “Justice KM Joseph’s instance is a very clear one, whose name has been stalled, which was recommended by the collegium four months ago. The name was unanimously recommended by the collegium and yet it has been stalled by the government because he gave a judgment in Uttarakhand case against the government. “It is very shameful and shocking for a government which talks about the independence of judiciary to try and erode the independence of judiciary by sitting on appointment of people that it doesn’t like,” Bhushan said. On 22 January, the apex court collegium’s file recommending the elevation of Justice Joseph and Malhotra had reached the Law Ministry. After processing the file in the first week of February, the recommendations were kept in abeyance as the government wanted to elevate only Malhotra. But now, the government has gone ahead with the appointment of Malhotra and asked the collegium to reconsider the elevation of Justice Joseph. The government feels that while recommending the name of Justice Joseph, the collegium has disregarded seniority and regional representation. He is 42nd in the seniority list of 669 high court judges.