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Indu Malhotra cleared as Supreme Court judge, govt sits on KM Joseph’s file

The Supreme Court collegium headed by the Chief Justice of India had on January 10 cleared the names of Justice KM Joseph and lawyer Indu Malhotra.

india Updated: Apr 25, 2018 23:48 IST
Jatin Gandhi
Jatin Gandhi
Hindustan Times, New Delhi
Indu Malhotra,KM Joseph,Chief Justice of India
Supreme Court judges are appointed by a collegium, which comprises the five top judges headed by the Chief Justice of India.(Sonu Mehta/HT File Photo)

The government cleared on Wednesday the appointment of senior advocate Indu Malhotra as a Supreme Court judge but kept on hold the top court collegium’s recommendation on elevating Uttarakhand high court Chief Justice KM Joseph, according to two people familiar with the matter.

The collegium – a body of the five top judges headed by the Chief Justice of India (CJI) that appoints judges – had on January 10 cleared the names of Justice Joseph and lawyer Malhotra.

While the government took up Malhotra’s case, it will spend more time to consider Justice Joseph’s file, one of the people quoted above said on condition of anonymity.

Malhotra — a renowned arbitration expert — was, in 2007, only the second woman to be appointed a senior advocate by the court, three decades after Leila Seth made history. She is the first woman to be nominated to the Supreme Court directly from the Bar.

Though “segregation” of recommendations (separate processing of names that have been sent by the collegium together) is rare in the Supreme Court, a government official defended the move, saying it was done “routinely” in the past in the case of high court judges’ appointments.

The norm of appointing candidates, whose names have been cleared together, at the same time ensures that their seniority is not compromised, explained a former SC judge who did not want to be named. Judges who are appointed to the Supreme Court first are considered senior to those who are appointed later.

While Justice Joseph has been the chief justice of the Uttarakhand high court since July 2014, Malhotra was part of a committee headed by former SC judge Justice BN Srikrishna to advise on a revamp of India’s institutional arbitration apparatus.

Justice Joseph is the senior-most chief justice of a high court but in the all-India list of seniority, he figured at number 42 as on April 1, said one of the officials quoted above. He added that the government may raise his seniority for taking longer to consider his name.

The last time the government had to segregate two recommendations made together, it led to a controversy. The then Chief Justice of India RM Lodha had written a strongly worded letter to the law minister against it on June 30, 2014.

The current law minister Ravi Shankar Prasad was in office then too. Justice Lodha had at that time said the move was made without his “knowledge and consent” and “unilaterally”.

“The same problem arose at the time (senior advocate) Gopal Subramanian was recommended. The government segregated his name from the other three…I had written to the law minister saying it should not be done without consulting the CJI. I emphasised that to the law minister. My view is it should not be done and that stands,” Lodha said on Tuesday, before the name had been cleared.

Subramanian’s name was sent back to the collegium for reconsideration, after which the lawyer withdrew his consent for elevation.

The delay in processing the January 10 recommendations was raised by Justice Kurien Joseph in a letter to the CJI on April 9. The SC had only sent the recommendations to the law ministry on January 22, after which the process of considering the names started, an official confirmed.

First Published: Apr 25, 2018 23:47 IST