Collegium defers decision on KM Joseph’s elevation, CJI suggests other judges be considered

Chief Justice Dipak Misra suggested that judges from the high courts of Rajasthan, Calcutta and Andhra Pradesh and Telangana be considered along with the proposal to elevate Justice KM Joseph.

The Supreme Court collegium on Wednesday unanimously agreed to defer by a week a decision on whether to recommend the name of Uttarakhand chief justice KM Joseph once again for elevation to the top court, after Chief Justice of India (CJI) Dipak Misra suggested that the names of more judges be considered.

Members of the Supreme Court collegium, which is headed by Chief Justice Dipak Misra (pictured here) and decides on appointments to the higher judiciary, deferred the decision on the elevation of Justice Joseph.(PTI File Photo)

A person privy to the collegium proceedings said Wednesday’s meeting lasted about 50 minutes. CJI Misra was of the view that judges from the high courts of Rajasthan, Calcutta and Andhra Pradesh and Telangana should be considered along with the proposal to elevate Justice Joseph, the person said on condition of anonymity.

Members of the collegium, which comprises the five senior-most Supreme Court judges and decides on appointments to the higher judiciary, then deferred the decision on the elevation of Justice Joseph.

Three of the others said they needed time to respond to other names proposed by the CJI and also to decide if a consolidated list of the four names should be sent to the government or just the name of Justice Joseph. Last week, the government cleared the appointment of senior advocate to the Supreme Court as a judge of the top court, but put on hold the collegium’s recommendation to elevate Joseph.

Four of the five collegium members were also for the first time informed on Wednesday of a letter written by law minister Ravi Shankar Prasad to the CJI on April 30 wherein he reiterated the government position that the principle of seniority must be followed in the elevation of judges to the top court.

The letter pointed out that justice Joseph is 42nd in seniority among the high court judges and many HCs such as Gujarat, Calcutta and Jammu and Kashmir are not represented in the apex court.

A second person with knowledge of the situation confirmed to Hindustan Times that so far the collegium had not decided whether to return the name of justice Joseph to the government for elevation. But there is a general view among the judges that his name needs to be reiterated as available facts and figures suggest that he is the “most meritorious” judge among the present lot of judges.

Apart from justice Joseph’s case, the collegium next week is likely to consider the names of justice Indira Banerjee, who hails from the Calcutta high court and is presently the chief justice of Madras high court; justice R.Subhash Reddy, who is from Telangana and is presently Gujarat high court chief justice; and justice Dinesh Maheshwari, who hails from Rajasthan and is chief justice of the Karnataka high court

After putting on hold justice Joseph’s elevation, law minister wrote to the CJI that it would “not be fair and justified to other more senior, suitable, and deserving chief justices and senior judges of various high courts.”

The collegium, which is headed by the CJI, comprises justices J Chelameswar, Ranjan Gogoi, MB Lokur and Kurien Joseph.

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 rights to send back a name for reconsideration.

A petition was filed by senior lawyer Indira Jaising, which said appointments have now become a matter concerning the “independence of judiciary”.

Jaising told the court that the government was stalling justice Joseph’s elevation because as chief justice of the Uttarakhand high court, he had quashed the imposition of President’s rule in Uttarakhand in 2016, leading to the reinstatement of the Congress party government led by Harish Rawat. The Congress has made a similar allegation.

On Wednesday, the law minister said the charges levelled against the government by the “Congress party in particular and others in general” that justice Joseph’s appointment had been stalled because of his Uttarakhand verdict amounted to “sponsored allegations.”

“I wish to deny with all authority at my command. It has nothing to do with that at all,” Prasad told reporters at a cabinet briefing. Prasad noted that a Bharatiya Janata Party government was elected with a three-fourths majority last year. And justice Joseph’s order was confirmed by justice J S Khehar of the Supreme Court, who had also set aside the National Judicial Appointments Commission Act; yet Khehar became CJI under the NDA government, Prasad said.

The law minister said the right of the government to seek a reconsideration of proposals made by the collegium is granted to it by the Supreme Court judgements of 1993, 1998 and 2015 relating to the collegium system.

On former CJI RM Lodha’s remarks that the independence of the judiciary is under challenge and should be “non-negotiable,” Prasad said that he did not want to comment on observations made by a retired judge.

“I always felt that independence of judiciary is non-negotiable and it is for the CJI, who is the leader of the court, to take them forward. Only one thing I would like to observe is the commitment of this government for the independence of the judiciary and respect for the institution of judiciary and the judges is complete and uncompromising,” he added.