When the Supreme Court collegium meets later this afternoon, there is common consensus on what it might do. Everybody expects it to reiterate its recommendation for the elevation of Chief Justice of Uttarakhand High Court KM Joseph to the top court. Once that happens, the government will have no option but to issue the warrant of appointment.
The only way the collegium’s recommendation will become infructuous is if the collegium’s concensus breaks down following the government’s rejection. There seems little likelihood of that happening. So what remains of interest is how the collegium will do what it does.
While returning the recommendation as "not appropriate", the government had raised three issues:
1. It was not fair on 41 judges who were ahead of Joseph on the all-India seniority list of high court judges;
2. His elevation would distort the regional imbalance in the Supreme Court further;
3. The collegium should consider appointing a Dalit judge as the court was devoid of one.
It will be interesting to see if the Supreme Court collegium responds to all the issues raised by the government. And if that response is made public, it will give greater transparency to the appointments made by the collegium. The NDA government has been beaten to pulp by legal luminaries, political opponents and media commentators for trying to stifle the independence of the judiciary for returning the file and for raising what looked like frivolous issues.
Perhaps, jurist Fali S Nariman was the only legal luminary who acknowledged the right of the government to make its points. A strong votary of the supremacy of the collegium, Nariman, however, told The Indian Express that the "government was entitled to the view it had taken. They have given reasons which are quite cogent. They may be right or wrong. Whether this meets with the approval of the collegium is quite another matter".
As pointed out at the outset, these arguments are unlikely to meet with the approval of the collegium. But they need to be addressed squarely because, one, the questions have been raised by the two highest Constitutional offices of the country — the president and the prime minister — and, two, they are "quite cogent" as Nariman pointed out. Let’s look at why the issues raised by the government are "cogent":
It is well known that seniority is a very important aspect in judicial appointments and operations. Just how important was demonstrated adequately when four senior-most judges — all colleagues of Chief Justice Dipak Misra on the collegium — broke with convention to hold a press conference on 12 January to rail against the functioning of the CJI. Their biggest concern was seniority. They said important cases were being allotted to juniors, while they were being kept out. So seniority is to die for in judicial corridors.
In its order of 10 January, 2018, appointing Joseph, the collegium mentions that it had taken seniority also into consideration. "The collegium considers that at present Justice KM Joseph… is more deserving and suitable in all respects than other chief justices and senior puisne judges of high courts… While recommending the name of Justice KM 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."
Joseph is currently 42nd in the seniority order. Obviously, seniority was not a winning attribute in his case. "Merit and integrity" were.
This is where the collegium will have to cast more light for the government and the public. It is obvious that the collegium thought that what Joseph lacked in seniority, he more than made up through merit and integrity, enough for him to jump 41 places ahead. The wide gap in the "merit and integrity" of Joseph and 41 of his fellow judges, merits explanation. It is not as though this kind of leap has happened for the first time. Justice SH Kapadia apparently superseded 39 jugdes when he was elevated. He went on to become CJI. But a question has been raised perhaps for the first time (at least in public knowledge), so it deserves an answer — whatever the motive behind the query.
The government pointed out that there was regional imbalance in the Supreme Court (one state having more than one judge while others have no representation). It said the Kerala High Court would be over-represented in the apex court. KM Joseph’s elevation would make him the second judge from Kerala High Court (Justice Kurian Joseph being the other). Besides, two other judges from Kerala are already chief justices in high courts. The government suggested this was best avoided when 10 other high courts did not have any representation at all in the Supreme Court.
This logic of the government has been dismissed as too inconsequential a parameter to exercise the collegium’s mind that looks for merit, seniority and integrity in candidates, as undoubtedly it must. But is regional representation in the higher courts such a piffling issue? The collegium itself does not think it is. Regional representation weighs heavily on the mind of the collegium.
Let’s look at some recent examples. On 19 April, the Supreme Court sent recommendations to the government for the appointment of three chief justices for the high courts of Meghalaya, Manipur and Punjab-Haryana. The reasons the collegium cited for selecting the chief justices are very instructive for the current debate. The recommendation letter for the appointment of Chief Justice of the Meghalaya High Court, for example, said, "While making the above recommendation, the collegium has also taken into consideration the fact that for quite some time there has been no chief justice from the Jammu and Kashmir High Court.” (Emphasis added)
Similarly, for appointment of Chief Justice of Manipur High Court, the collegium picked a judge from the Madras High Court, "one of the largest high courts", because there has been no chief justice from there "for quite some time". Picking a second chief justice from the Allahabad High Court (for Punjab and Haryana High Court), the collegium reasoned that there was only one chief justice from the largest court of the land.
This helps us draw the unambiguous inference that all other selection parameters being equal, the collegium gives regional representation a big leg up. In the latter two cases cited above, it is clear that even the size of the judges' parent high court can tip the scales in their favour.
On 10 January this year, while clearing the appointment of 10 chief justices, the collegium ceded to the demands of regional representation in two cases (Manipur and Chattisgarh High Courts). Combined, it means that in the last 15 appointments to chief justice, the Collegium has deferred to the regional representation norm no less than five times. That’s a healthy precedent of 33.33 percent.
Precedent and convention are given a status almost equal to the Constitution in the hoary corridors of the Supreme Court. Once again, the caveat here is that regional imbalance is also a reality, it is impossible to eliminate it. But now that the government has chosen to raise a query in a specific case, it will require specific answers.
There’s another issue of seniority we should look out for from the collegium’s decision today. The last paragraph in the collegium's 10 January order mandated this:
"In view of the foregoing, the collegium resolves to recommend that appointments be made in the following order:
1. Mr Justice KM Joseph
2. Ms Indu Malhotra, Senior Advocate"
The collegium had quite clearly set out the order of seniority between Joseph and Malhotra. The government’s rejection of Joseph’s appointment has changed that order. It segregated the recommendations and issued the warrant of appointment for Malhotra, who has already taken oath. It will be interesting to see what view the collegium takes on this. And what it says about the government's move to segregate — which impacts the succession planning of the collegium. The memorandum of procedure is silent on segregation so the collegium might not be able to unilaterally alter it. But will it suggest that the matter be taken up on the judicial side to expressly foreclose the government’s (unstated) power to segregate?
Of course, the government is being clever, especially in raising the issue of absence of a Dalit judge in the Supreme Court. It aligns perfectly well with its political and electoral messaging for Dalits, especially faced with a severe backlash from Dalits after the Supreme Court's judgement on the SC/ST Atrocities Act and earlier attacks on Dalits. That does not relieve the apex court of the responsibility of answering the question: Why is there no Dalit judge? Especially because it has been solely in charge of appointments for the past 25 years.
The collegium can respond to all these issues in detail and make the reasons public to clear the air. Or it can use the sledgehammer of judicial independence given unto it by itself and send a one-line 'we-stand-by-our-recommendation' missive to the government. Hopefully, the collegium will choose the first option.
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Updated Date: May 02, 2018 12:41:25 IST