The National Democratic Alliance (NDA) government on Thursday asked the Supreme Court collegium to reconsider its recommendation that Uttarakhand chief justice KM Joseph be elevated to the top court, triggering accusations by political rivals and a section of the legal fraternity that it is undermining the independence of the judiciary.
It is also the latest potential flashpoint between the executive and the apex court.
Judges to the Supreme Court are appointed by a panel of the court’s top five judges who make up the collegium, which on Thursday received an explanation from the government over why Joseph should not be elevated. The collegium now has the option to reiterate its choice or scrap the recommendation.
Read : Not elevating KM Joseph to SC exposes PM Modi’s revenge politics: Congress
“The proposed appointment of justice KM 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 Justice and senior judges of various high courts,” said law minister Ravi Shankar Prasad in a letter to Chief Justice Dipak Misra. The letter said the “proposal” that the collegium reconsider Joseph’s name had the President and Prime Minister’s approval.
In proposing the name of Justice Joseph, the government said, the collegium had not followed the principle of seniority. “In the all-India high court judges seniority list, Justice Joseph is placed at 42. There are presently 11 chief justices who are senior to him,” Prasad wrote.
{{/usCountry}}In proposing the name of Justice Joseph, the government said, the collegium had not followed the principle of seniority. “In the all-India high court judges seniority list, Justice Joseph is placed at 42. There are presently 11 chief justices who are senior to him,” Prasad wrote.
{{/usCountry}}The government also listed regional representation and caste diversity as other reasons to return Justice Joseph’s name. “High courts of Calcutta, Rajasthan, Gujarat, Chhattisgarh, Jharkhand, Jammu and Kashmir and Uttrakahand and some smaller high courts are not represented in the Supreme Court,” said the letter.
Late on Wednesday, the government took the unusual step of clearing one appointment suggested by the collegium while holding back on that of Joseph, both of which had been suggested in January.
The splitting of names — several judges are often appointed together to ensure they have seniority at par — has in the past sparked angry exchanges between the executive and the courts.
The name cleared was that of Indu Malhotra, a senior advocate who, when she is sworn in on Friday, will become the first woman to be directly appointed to the Supreme Court from the Bar. A number of Supreme Court lawyers urged the top court to put on hold Malhotra’s appointment and direct the government to clear Joseph’s name — a request that was rejected by a bench led by the Chief Justice Misra.
The bench said the government is within its right to send back a name for reconsideration. “We (the Supreme Court collegium) will deal with it in accordance with Supreme Court judgments and constitution,” said the court. “Supposing the government is sending it for reconsideration, it will be seen. You are saying ‘stay the warrant’ (of Malhotra’s appointment). It is unthinkable, unconscionable, unimaginable, and if I may add ‘never heard before’,” said Misra.
The petition, filed by senior lawyer Indira Jaising, said the appointments have now become a matter concerning the “independence of judiciary”.
Jaising told the court that the government is stalling Justice Joseph’s appointment as a judge of the Supreme Court because as Chief Justice of Uttarakhand High Court he had quashed imposition of President’s rule in Uttrakhand.
On Thursday morning, the Congress party accused Prime Minister Narendra Modi of “suffocating” the judiciary. “Indian judiciary is in danger. And if our judiciary is not united to protect its independence then democracy is in danger.... they want to pack high courts with their own people,” senior Congress leader Kapil Sibal said at a press conference. The judiciary is under the “most vicious attack ever” and totalitarianism will stump democracy if the nation does not rise now, Congress communications in-charge Randeep Surjewala alleged in a Twitter post.
“PM Modi’s ‘revenge politics’ qua judiciary and ‘conspiratorial suffocation’ of Supreme Court exposed again,” Surjewala wrote said on Twitter. “Yet Modi Government refuses to clear his elevation to SC as retribution for quashing presidential rule in Uttarakhand?”.
The law minister rejected the opposition party’s allegation. “The Congress party has no moral authority or stand to ask questions about dignity of the judiciary from us. The whole record of Congress party is littered with repeated instances as to how the judiciary of India was supposed to be compromised,” Prasad told news agency ANI.