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Former Supreme Court judge Justice K.M. Joseph recently urged the Central Government not to sit over recommendations reiterated by the Supreme Court Collegium, saying such recommendations should be acted upon unless there is a “really good” and relevant reason against the appointment.

“My appeal is that when the collegium actually makes a recommendation in terms of the Second Judges Case, the Third Judges Case, reiterates the names, let not the Central Government sit over the proposals which are binding on it. It should be understood that they should be appointed unless there is some really good cause which stands in the way and which is germane and relevant to the appointment of the judge.”

He also called for an end to the disagreement between the state and the judiciary over judicial appointments.

“My fervent appeal is that this discord, this disharmony between the state and the judiciary should be cleared at the earliest so that you get the finest judges because judging is not an easy process,” he remarked.

Delivering a lecture to commemorate the 250th anniversary of the US Declaration of Independence organized by the Kerala High Court Bar Association, Justice Joseph highlighted that the objective of the judgments in Second and Third Judges Cases was of keeping the judiciary free from governmental control and ensure that the “very best” people were appointed as judges, having qualities beyond knowledge of law.

“When I say the very best, it includes a bouquet of virtues. This not somebody who has learned it. As recently Justice Venkatachaliah (former CJI) in an interview said, 'If he is a gentleman and if he knows a little bit of law, that is good enough.' People who will be fearless and independent. Because it will be transient and momentary and foolhardy for any government to think that if you have somebody who will not really question you when you should be questioned, you have won the day. You may have. But what about the great history we have behind us of finest and noblest and most learned judges? The contributions they have made to the framing of our republic, propping it up and where we have reached, the contribution is monumental,” he said.

Justice Joseph also flagged the long pendency of Constitution Bench matters and called for a permanent Constitution Bench in the Supreme Court.

He highlighted that there are 28 main matters pending before Constitution Benches. The average pendency of larger bench matters, according to the data from the JALDI portal, was 2,738 days. He noted that eleven cases had been pending for one to five years, six cases for six to ten years and more than six cases for over ten years.

“My humble and respectful request is that the Supreme Court must have a permanent constitutional bench,” he urged.

Justice Joseph also expressed concern that merely increasing the number of judges may not resolve the Supreme Court's workload unless the inflow of cases is controlled.

“One of the problems which I personally feel is that, with utmost respect, is that, you know, if the inflow of cases are not controlled, because today I am told, from what I could find, about 93,000 cases are pending. You are talking about the highest court of the land. And, you know, I am apprehensive whether, you know, by mere increasing the number of judges, the problem could be solved,” he remarked.

He suggested that, with 38 judges now available, the Court could have a permanent five-judge Bench to deal with pending constitutional questions.

He referred to the question of whether courts can prescribe a timeline for Speakers to decide anti-defection petitions. The issue was referred to a Constitution Bench in S.A. Sampath Kumar v. Kale Yadaiah and Others in 2016. Justice Joseph noted that, on checking the status, he could not find that the reference had yet been decided.

He emphasised the need for speedy disposal of constitutional questions.

“Courts in these matters of constitutional importance, they should not allow it, in my view, not beyond a year. Constitution Bench matters should not be kept pending. This will go a long way in deciding so many other matters, dependent matters which are also pending on the result of these cases. So many cases are pending,” he observed.

He also contrasted the functioning of the Indian Supreme Court with the US Supreme Court, where all nine judges sit together. In India, he noted, judges sit in different benches and may not know what is happening before another bench.

He also flagged the docket expansion in the Supreme Court due to expansion in its jurisdiction, highlighting that 22 statutes have vested appellate, original or original appellate jurisdiction in the Supreme Court, including jurisdictions not contemplated under the Constitution.

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