KM Joseph's elevation row: SC collegium to meet today to decide on Centre's refusal to accept recommendation

The five-member Supreme Court collegium is likely to conduct a crucial meeting on Wednesday to decide whether to recommend Uttarakhand High Court chief justice KM Joseph’s elevation as a judge of the apex court. The Centre had returned the collegium’s original recommendation last week for reconsideration.

The collegium comprising Chief Justice Dipak Misra and Justice J Chelameswar, Justice Ranjan Gogoi, Justice Madan B Lokur and Justice Kurian Joseph is expected to  discuss Law Minister Ravi Shankar Prasad’s letter on KM Joseph’s reconsideration.

Prasad had written to Misra on 26 April saying that the proposal for the reconsideration of the case of KM Joseph “has the approval of the president and the prime minister”.

Centre’s reasons for seeking reconsideration

The government invoked both the principle of seniority and proportionality while returning the recommendation of KM Joseph for reconsideration. Prasad’s letter to the CJI said Joseph stands at number 42 in the seniority of High Court judges and there are 11 chief justices of different high courts who are senior to him.

Quoting sources, IANS reported that the letter described Kerala High Court as a “comparatively small high court” with a sanctioned strength of 42 judges and pointed out that besides Kuriann Joseph, the chief justices of three other high courts — KM Joseph (Uttarakhand), TB Radhakrishnan (Chhattisgarh) and Antony Dominic (Kerala) — all consider it their parent high court.

While sending back the recommendation for reconsideration, the government also flagged the non-representation of SC/STs in the top court judges.

On 10 January, the top court collegium had unanimously recommended his name and senior advocate Indu Malhotra’s name for elevation.  Malhotra was sworn in as the judge of the apex court on 27 April.

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

In a ruling in 2016, he had quashed the NDA government’s decision to impose President’s Rule in Uttarakhand and brought back the Congress government of Harish Rawat to power. The judgment was seen as a major set back to the BJP-ruled government at the Centre.

At present, there are 25 Supreme Court judges , of whom three each are from Bombay and Delhi High Court, while the high courts of Allahabad, Madhya Pradesh, Karnataka and Andhra Pradesh contribute two each, according to The Times of India . The high courts of Kerala, Odisha, Gauhati, Punjab and Haryana, Madras, Patna and Himachal Pradesh provide one Supreme Court judge each. There are ten high courts which have no representation in the Supreme Court.

However, if the collegium resends KM Joseph’s recommendation for elevation, the president has no option but to accept it since the collegium’s decision is seen as binding on the government.

Centre’s move draws sharp reaction

The Centre’s action of accepting only one of the two names recommended by the collegium for elevation as Supreme Court judges evoked sharp reaction from the legal fraternity and the Opposition parties.

The Supreme Court Bar Association 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. 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.”

While the Congress questioned the NDA government’s motives behind the decision, the CPM demanded President Ram Nath Kovind’s intervention.

“The law says what collegium recommends, only they will be appointed. The government wants to ignore the collegium’s recommendations. If it is not of their choice, they will not appoint him,” senior Congress leader and senior advocate Kapil Sibal had said at a press conference.

In a series of tweets, Congress leader and former finance minister P Chidambaram had also asked if Modi government was “above the law”.

What is holding up Justice K M Joseph's appointment? His State or his religion or his judgement in the Uttarakhand case?

— P. Chidambaram (@PChidambaram_IN) April 26, 2018

The CPM demanded President Ram Nath Kovind’s immediate intervention to ensure that laid-out procedure in the selection of judges is followed and the collegium’s recommendation to elevate KM Joseph to the Supreme Court is cleared. “The government has not cleared the appointment of KM Joseph. This is an unwarranted intrusion into the selection process of a judge and will affect the independence of the judiciary,” it had said in a statement.

However, BJP leader Subramanian Swamy had claimed the Congress’ stand on the issue reflected its frustration. “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 had said.

With inputs from agencies