Collegium Recommendations Of Justice KM Joseph And Indu Malhotra: A Litmus Test On Independence Of Judiciary

It is learnt that the four senior-most judges of the Supreme Court—Justice Chelameswar, Justice Ranjan Gogoi, Justice Madan.B.Lokur, and Justice Kurian Joseph—are seriously aggrieved by the Central Government’s inaction about the Collegium recommendations. Sources revealed to Live Law that these judges, being a part of the Collegium, had taken up the issue with the Chief Justice of India, Dipak Misra J., who has failed to be firm with the Central Government. At least, the four judges seem to believe so.The way the Government has been sleeping over the collegium recommendations and also dilly-dallying with the Memorandum of Procedure (MoP) to appoint judges has been a cause of concern for the judges. It is reliably understood that the judge-quartet repeatedly raised the issue with the CJI, but to no avail. In fact, the differences between the CJI and the remaining four judges in the collegium believed to have acted as an additional impetus for the four to hold the press conference on the 12 of January. Perhaps, the other reasons such as roster fixation, too, may have hastened the show-down.Memorandum of Procedure- The bone of contention.Ever since the striking down of Constitutional amendment introducing NJAC, things have not been very smooth between the Centre and the Collegium, especially, about judicial appointments. The major bone of contention is the finalization of Memorandum of Procedure (MoP).In December 2015, the Constitution Bench of Supreme Court directed the Central Government to finalize the MoP in consultation with the CJI, after considering the revised guidelines proposed by SC. Because of the stand-off between the Government and the Collegium about MoP finalization, judicial appointments have been getting delayed, undeniably. The Centre has dragged its feet on the Collegium recommendations regarding judges’ appointments and transfers. Therefore, in 2016, many of the High Courts witnessed high percentage of judicial vacancies.Later, the Centre formulated a draft MoP, which included a contentious clause enabling the Centre to reject a candidate on the ground of ‘national security’, suspected to be a veto in disguise. The draft MoP by the Centre suggested that the Attorney General and the Advocate Generals of the respective states should have a say in the matter of selection. Retired judges’ involvement, too, was suggested. But the Collegium rejected the Central Government’s recommendations in the draft MoP.In the wake of the stalemate, the Collegium recommendations got stuck at the Ministry, without further movement. For example, the Collegium had recommended the transfer of Justice K.M Joseph, the present Chief Justice of Uttarakhand High Court to Andhra Pradesh High Court, reportedly for health reasons. The Central Government, strangely, maintained a deafening silence on the matter. It kept the matter pending, still, too long.Centre’s delay in processing the Collegium recommendations caused much anguish to the then CJI T.S Thakur. A Bench headed by him did not mince words in expressing its unhappiness over the ‘logjam’ in appointing judges. “The collegium has cleared 75 names of high court judges (for transfer/appointment) but they have not been approved. I don't know why, where these files are stuck”, a much disturbed CJI asked the then Attorney General Mukul Rohatgi. While speaking at a public function in which PM Narendra Modi was also attending, CJI Thakur made an emotional appeal to the Centre to act promptly on judicial appointments and, in fact, broke down in tears during his speech. Neither his criticism nor his crying, so to say, moved the Government.Then came Justice J.S Khehar. He expressed dissatisfaction at how the Centre was delaying appointments. As the CJI, he was prepared to consider the issue on the judicial side by adjudicating the PILs seeking expeditious filling up of judicial vacancies. The then Attorney General, Mukul Rohatgi, objected to the PILs stating that it was a matter to be dealt with by the administrative side of the judiciary and not its judicial side. “We cannot run away from our own cause when they (citizens) are projecting the cause of the judiciary.”, the Bench observed, overruling the AG’s objections.During May 2017, the SC collegium led by the then CJI Khehar finalized the MoP, conceding to the Government’s demand that it could veto a candidate on the ground of ‘national security’. The Supreme Court also gave up its objections to the Centre’s proposal for setting up secretariats to deal with judicial appointments. Even though the SC Collegium has cleared the MoP, the Centre has not returned its word on it and has kept it pending claiming that it’s studying the matter.The letter written by four senior judges to the CJI, released to the media on 12th January, refers to how a Division Bench dealt with the issue of MoP. On 27th October, a Division Bench comprising Justice A.K Goel and Justice U.U Lalit sought the Government’s response, in a petition...

Collegium Recommendations Of Justice KM Joseph And Indu Malhotra: A Litmus Test On Independence Of Judiciary

Manu Sebastian

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