100 SC Lawyers & Former CJIs Protest Against Centre’s Decision To Not Elevate Justice KM Joseph To Supreme Court

On April 26, 100 top Supreme Court lawyers called for an extraordinary meeting of Supreme Court Bar Association (SCBA) to protest against the Centre’s holding up the elevation of Justice KM Joseph to the top court. Four former Chief Justices of India and four former judges of the Supreme Court too have questioned CJI Dipak Misra over the government’s role in segregating the recommendations of the Supreme Court collegium that recommended Justice Joseph.

This comes after the recent appointment of lawyer Indu Malhotra to the position of Supreme Court judge. The names of both Indu Malhotra and KM Joseph were suggested, however, Judge Joseph’s appointment was overlooked. It widely speculated that the centre’s refusal to give consent to the Collegium’s recommendation is due to Justice Joseph’s 2016 ruling where he quashed President’s rule in Uttarakhand.

Top SC lawyers urge for judicial independence

100 top SC lawyers sent a petition to the Supreme Court Bar Association expressing their “displeasure and opposition to the Executive action of splitting up/segregating the recommendation of the Supreme Court Collegium.”

The petition asks President Ram Nath Kovind to “forthwith issue warrants of appointment of both learned judges.”

The lawyers said that while they stood for the elevation of Indu Malhotra to the position of a Supreme Court judge, the exclusion of Justice KM Joseph has caused deep anguish. They said, “While we stand for the nomination of Ms Indu Malhotra, senior advocate and one of our distinguished members, we express our deep anguish for non-inclusion of Justice KM Joseph and selective processing of files contrary to the recommendation of the Supreme Court Collegium.”

They also added, “We strongly condemn the selective approach of the Executive and call upon the Hon’ble Supreme Court to take appropriate steps to restore independence of the judiciary.”

The petition was signed by the lawyers after senior SC lawyer Indira Jaisingh submitted a plea in the top court to stay the oath-taking ceremony of Indu Malhotra which was scheduled at 10 AM on April 27.

Responding to this, the CJI has said that there was nothing wrong in the centre returning file on Justice Joseph.

Four former CJIs and four former judges of SC question CJI Misra

Speaking on the issue, former CJI RM Lodha said that the government’s splitting up of the recommendation by the SC collegium “strikes at the very heart of the independence of the judiciary.”

He added that should a situation like arise, the CJI “should immediately call a meeting of the collegium and take up the matter with the government. If the reiteration must be done, it must happen immediately. The Chief Justice cannot sit over the file either, indefinitely, as can’t the government.”

Justice Lodha quoted the Memorandum of Procedure which establishes terms of engagement between the centre and the judiciary – it does not talk of segregation but “settled convention is that the government cannot segregate the names.”

As per The Indian Express, former chief justice of Delhi high court and former chairperson of the Law Commission, Justice A.P. Shah said, “Clearly the reason (Justice Joseph’s file was rejected) is his judgment against the Centre in 2016. The points raised about his so-called seniority are not relevant and he is the most suitable person for the job. As far as representation from Kerala is concerned, Justice Kurian Joseph, the only other Kerala judge will retire in a few months.”

Former CJI TS Thakur said that the decision to exclude Justice Joseph was unfortunate. The other two chief justices and four other former judges of Supreme Court too said that it is a matter of great concern that CJI Misra had not spoken to Centre about sitting on the recommendation.

It is being reported that Law Minister Ravi Shankar, in his letter to CJI Misra over the segregation, has opined that Justice Joseph represented Kerala which is a relatively small state from where there was already a judge in SC and two other chief justices of high courts. He also said that judge Joseph was junior to 41 High Court judges and that there was no SC/ST judge in the SC. However, it must be noted that the two judges from Bombay high court in May 2016 and two from Karnataka high court in February 2017 were elevated even when other states were underrepresented.

Moreover, it has been pointed out that even after Justice Joseph’s elevation, there would still have been four vacant posts in the apex court, which could have been filled with judges from the SC/ST category.