The Asian Age – Government rejects move for judge elevation

Collegium urged to reconsider Justice K M Joseph; CJI feels government ‘within rights’

J Venkatesan

New Delhi – India, 27 April 2018. In a buildup for confrontation between the government and the judiciary, the Centre on Thursday returned to the Supreme Court collegium its recommendation to elevate Uttarakand high court’s Chief Justice K M Joseph as a judge of the apex court on the ground that he is 42nd in the list of seniority of high court judges.

Justice Joseph headed the high court bench that had quashed the Narendra Modi government’s decision to impose President’s rule in the Congress-ruled hill state in 2016.

The disagreement over appointment of the top judge comes at a time when the judiciary has been blaming the government for failing to appoint enough judges to deal with the huge backlog of over 2.75 crore pending cases.

On Wednesday, the government cleared the elevation of advocate Indu Malhotra as a Supreme Court judge and put on hold the elevation of Justice Joseph though both the proposals were sent at the same time in January this year.

“The proposed appointment of Justice K M Joseph at this stage does not appear to be appropriate. It would also not be fair and justified to other more senior, suitable, and deserving chief justices and senior judges of various high courts,” said a letter law minister Ravi Shankar Prasad sent to Chief Justice of India Dipak Misra on Thursday.

The government returned the proposal on Justice Joseph’s elevation and asked the collegium to reconsider it, 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.

Under the memorandum of procedure on appointment of judges, once the proposal is returned for reconsideration, and if the collegium reiterates the appointment, the government is bound to accept the same but there is no time limit on such appointment.

The NDA government’s decision to return to collegium its recommendation came after almost three-and-half-months after Justice Joseph’s name was cleared on January 10 by the five-member collegium, the highest decision-making body of the SC comprising CJI Dipak Misra and Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph.

In the recent weeks, members of the collegium had expressed concern over the government sitting over their recommendation to elevate Justice Joseph.

The latest communication on the delay 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 Congress-led MPs against the CJI.

Justice Joseph, who will turn 60 in 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 October 14, 2004. A high court judge retires at the age of 62 while the retirement age for an apex court judge is 65 years.

Though it was widely perceived that Justice Josep-h’s elevation was put on hold by the Centre because of a judgment given by him in 2016 quashing President’s rule in Uttarakhand and restoring the Congress government, the Centre has denied this charge.

The government said that the objection to his elevation was mainly on the ground that he is 42nd in the list of seniority among high court judges and 11 in the seniority among the chief justices of high courts.

Sources pointed out that if Uttarakand judgment was the reason, then on the same yardstick the government ought not to have accepted the appointment of Justice J S Khehar as the CJI who prior to his elevation as the CJI had given a verdict quashing the National Judicial Appointments Commission law.

The now-quashed NJAC law sought to give politicians and civil society a final say in the appointment of judges to the highest courts replacing the current system of “judges appointing judges”.

Law minister Mr Prasad, in an informal meeting with journalists, said that it would be appropriate to mention that Kerala high court has adequate representation in the Supreme Court and among the chief justices in various high courts, namely Justice T B Radhakrishan, chief justice of Chhattisgarh high court, and Justice Antony Dominic, chief justice of Kerala high court.

Mr Prasad said, “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 in different high courts, then this consideration cannot be and should not be ignored altogether to the detriment and prejudice of other senior judges” and urged the SC collegium to reconsider the move to elevate Justice Joseph.

The collegium’s January 10 resolution had earlier said it “considers that at present Justice K M Jose-ph, who hails from Kerala high court and is currently functioning as chief justice of Uttarakhand HC, is more deserving and suitable in all respects than other chief justices and senior judges of high courts for being appointed as judge of the SC”.