In a move that could well be the final death knell in the already strained relationship between the Centre and the Judiciary, the former has sent back the recommendation for elevation of Chief Justice of Uttarakhand High Court, Justice K.M. Joseph as a Supreme Court Judge. This is despite the fact that it cleared candidature of Senior Advocate Indu Malhotra, who was recommended with Justice Joseph on 11 January.
The recommendation has been rejected noting that it would "not be fair and justified to other more senior, suitable and deserving Chief Justices and senior Puisne Judges of various High Courts."
In its letter to the collegium, the Centre points out that Justice Joseph is placed at serial number 42 in the All India High Court Judges' Seniority List, with eleven Chief Justices of various High Courts currently senior to him. Besides, it also seeks to assert that the Apex Court has not had any representation from the Scheduled Castes and Scheduled Tribes for a while now.
The Centre further points out that while at least ten High Courts are not represented in the Supreme Court currently, Justice Joseph's elevation to the Supreme Court would mean the Supreme Court would have two Judges from Kerala High Court. It even stresses on the fact that Kerala High Court has "adequate representation" within High Courts as well, with two other Chief Justices- Justice T.B. Radhakrishnan (Chhattisgarh High Court) and Justice Antony Dominic (Kerala High Court)- belonging to the same High Court.
It then refers to the judgments in the Second and Third Judges' cases, and explains, "At this stage, elevation of one more judge from Kerala High Court as a Judge of the Supreme Court of India does not appear to be justified as it does not address the legitimate claims of the Chief Justices and Puisne Judges of many other High Courts and forestalls the claim of other senior Chief Justices and Puisne Judges. It is also, in our considered view, not in accord with the parameters laid down by the Supreme Court itself in the Second Judges' Case [(1993)4SCC441] and reiterated in Third Judges' case [(1998)7SCC739]."
With regard to the consideration paid to seniority, it asserts, "It may be stated that the Collegium System is a creation of judicial decision of the Supreme Court...
...From our records, it is evident that to ensure regional representation, seniority may not have been taken as an importance consideration but in case where the High Court concerned is adequately represented in the Supreme Court and also as Chief Justices of different High Courts, then this consideration cannot be, and should not be, ignored all together to the detriment and prejudice of other senior judges."
The Centre also justifies segregation of the proposal, "in the interest of expeditious action on appointments and filling up of vacancies", thereby approving Ms. Malhotra's elevation while sending back Justice Joseph's.
A long wait
Justice Joseph's appointment has been in the pipeline for quite some time now. As Chief Justice of Uttarakhand High Court, Justice Joseph had pronounced a judgment quashing the President’s rule imposed in the State of Uttarakhand. The Collegium had then, in May, 2016, recommended his transfer from Uttarakhand High Court to the High Court of Andhra Pradesh & Telangana. However, this hasn't materialized yet. Thereafter, last year in February, Justice Chelameswar had also questioned Justice K.M. Joseph's exclusion from the recommendations for elevation to the Apex Court.
While recommending Justice Joseph in January, the resolution signed by Chief Justice of India Dipak Misra, Justice J. Chelameswar, Justice Ranjan Gogoi, Justice M.B. Lokur and Justice Kurian Joseph had stated that they found Justice K.M. Joseph to be "more deserving and suitable in all respects than other Chief Justices and senior puisne Judges of High Courts for being appointed as Judges of the Supreme Court of India".
The resolution had, in fact, specifically mentioned that the decision was being taken after considering the combined seniority of Chief Justices and senior puisne Judges of High Courts, apart from their merit and integrity.
Nevertheless, there were soon news reports which had claimed that the Law Ministry had sent back the recommendation, without forwarding it to the President. This was, however, refuted by a few media houses who quoted Law Ministry sources to claim that the news was incorrect.
Thereafter, it was reported last month that the Centre had now cited breach of seniority to block his appointment. Following this, Justice Kurian Joseph had penned a letter to CJI Misra, questioning the Centre's inaction on the two recommendations. He had urged the CJI to establish a bench of seven senior-most Judges to take up the issue suo motu on the judicial side, relying on the stance adopted by the Court in Justice C.S. Karnan's case.
Justice Kurian Joseph had, in fact, opined that Centre's inaction would send a "wrong message" to Judges that they would "suffer" if they don't tow the Centre's line.
While not spelling it out explicitly, this seemed to be a reference to the delay in elevation of Justice K.M. Joseph, who had in April, 2016 ruled against the Centre while examining the imposition of President's rule in Uttarakhand.
With this, the Supreme Court Judge had asserted that the "very life and existence" of the Supreme Court is under threat and "history will not pardon us," if the court doesn’t respond to the Centre sitting on the two recommendations.
You may read: Collegium Recommendations Of Justice KM Joseph And Indu Malhotra: A Litmus Test On Independence Of Judiciary By Manu Sebastian
Read the Letter To CJI