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Satya Prakash
Tribune News Service
New Delhi, April 26
The government on Thursday asked the Supreme Court collegium to reconsider its recommendation to elevate Uttarakhand High Court Chief Justice KM Joseph to the top court, saying it may not be “appropriate” at this stage.
In a letter to Chief Justice of India Dipak Misra, Law Minister Ravi Shankar Prasad said on the all-India high court judges’ seniority list, Justice Joseph was ranked 42 and there were 11 Chief Justices of high courts who were senior to him. The decision had approval of the President and the PM, Prasad wrote.
It also pointed out that SCs/STs had no representation in the top court since long. It would not be fair and justified to other more senior, suitable and deserving Chief Justices and senior judges of various high courts, Prasad wrote.
The government’s decision to send back Justice Joseph’s name coincided with the official notification for appointment of senior advocate Indu Malhotra as a judge of the Supreme Court. Malhotra is the first woman to make it as the SC judge from Bar.
Currently, the Supreme Court is functioning with only 26 judges against a sanctioned strength of 31 judges. Malhotra’s appointment will take the number of judges in the top court to 27.
Within hours, lawyers led by senior counsel Indira Jaising moved the Supreme Court seeking stay on the appointment of Malhotra who is expected to take oath on Friday. However, a three-judge Bench headed by CJI Misra refused to stay Malhotra’s appointment, terming it “unthinkable”.
“What kind of prayer is this? It is unthinkable, unimaginable, inconceivable and never heard of,” the Bench, which also included Justice AM Khanwilkar and Justice DY Chandrachud, told senior advocate Indira Jaising.
“Is it a demolition matter or a question of personal liberty? There is no question of staying the warrant of appointment,” it said.
Malhotra’s name was recommended by the collegium in January along with that of Justice Joseph for appointment as SC judges, but the government chose to segregate her name for elevation while sending back the Uttarakhand HC Chief Justice’s name to the collegium for reconsideration.
Accusing the government of cherry picking, Jaising said the government withheld Justice Joseph’s appointment because he had delivered an “unpalatable” verdict with regard to President’ rule in Uttarakhand.
But the Bench said the government was well within its rights in sending back Collegium’s recommendation.
The Bench told Jaising that her prayer was problematic. Often the collegium recommended 30-35 names for bigger high courts and the government withheld a few while going ahead with appointment of the rest, it pointed out.
More judges senior to him: Law minister
Law Minister Ravi Shankar Prasad held that on the HC judges’ seniority list, Justice KM Joseph was ranked 42 and there were 11 Chief Justices senior to him. Justice Joseph had quashed President’s rule in Uttarakhand.
Ball in collegium court
If the collegium reiterates its recommendation, it would be binding on the government which will have to appoint Justice Joseph as SC judge. CJI-led Bench has said the govt can send back collegium’s recommendation for rethink.
Cong sees ‘conspiracy’
"What’s holding up Justice Joseph’s appointment? His state or his religion or his judgment in Uttarakhand case? (had ruled in favour of Cong petition against President’s rule." — P Chidambaram, Cong leader
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