The confrontation between the executive and the judiciary over elevation of the Uttarakhand chief justice, KM Joseph, to the apex court may take another dramatic turn.
Speaking to The Indian Express, justice Kurian Joseph, one of the senior members of the collegium, said, "The collegium might have to reiterate its recommendation furnishing facts and figures, and citing precedent, which have not been put in perspective by the government when it returned his name." The collegium is scheduled to meet on Wednesday (April 2).
On April 26, 2018, the government of India returned for reconsideration the Supreme Court collegium's recommendation to elevate Uttarakhand chief justice KM Joseph to the apex court. At the same time, the Centre has notified the appointment of senior advocate Indu Malhotra as a judge of the apex court. Though both names had been recommended together on January 10. This has created massive uproar in the legal fraternity.
Many former chief justices of the Supreme Court along with eminent jurists have questioned the rationale behind government's move.
As chief justice of Uttarakhand High Court, KM Joseph had cancelled President's Rule in Uttarakhand and brought back the Harish Rawat-led Congress government to power in 2016. The judgment was seen as a major setback for the BJP-ruled government at the Centre. The general perception in the legal fraternity is that this judgment could be the reason behind the Centre's reluctance in accepting Justice KM Joseph as the Supreme Court judge.
The central government has given four reasons that have led to this conclusion being drawn by experts. Let us have a look at those reasons and assess how tenable they are.
1) Justice Joseph is low on seniority list
In its letter, the government said: "In the All India high court judges' seniority list, shri justice KM Joseph is placed at serial number 42. There are presently eleven chief justices of various high courts who are senior to him in All India high court judges' seniority list."
The question is can seniority be the criteria for rejection?
The collegium system came into existence through an apex court verdict in 1993. This case is known as the Second Judges Case. Quoting Law Commission's report, the verdict said, "It is beyond controversy that merit selection is the dominant method for judicial selection and the candidates to be selected must possess high integrity, honesty, skill, high order of emotional stability, firmness, serenity, legal soundness, ability and endurance."
It clearly puts emphasis on merit and says that it is the dominant method for judicial selection. And not seniority, as government has said.
In 1998, former president KR Narayanan asked a question regarding the collegium system. In the Third Judges Case, the apex court had given its opinion. It again said, "Merit, therefore, as we have already noted, is the predominant consideration for the purposes of appointment to the supreme court… Where, therefore, there is outstanding merit the possessor thereof deserves to be appointed regardless of the fact that he may not stand high in the all India seniority list or in his own High Court. All that then needs to be recorded when recommending him for appointment is that he has outstanding merit."
Again the apex court reiterated "outstanding merit" should be considered for appointments and not seniority.
While recommending justice KM Joseph, the collegium resolution of January 10 recorded in its signed resolution that he "is more deserving and suitable in all respects than other chief justices and senior puisne judges of high courts for being appointed as judge of the Supreme Court of India".
The apex court's resolution clearly suggests that it is in tune with the court's opinion in the Second Judges Case and Third Judges Case.
The Central government is putting emphasis on seniority. But in 2016 it had appointed vice chief of army staff lieutenant general Bipin Rawat as the new Army chief, superseding his two senior officers. General Rawat, superseded senior most army commander lieutenant general Praveen Bakshi and lieutenant general PM Hariz. Defending this decision defence ministry sources said "the selection is based purely on merit, irrespective of the corps to which the officer originally belonged".
Same government has applied two contradictory rules in the case of two of the most respectable institutions of India. It gave primacy to merit in Army and seniority in apex court. Critics say that it operates on a very simple principle - Show me the person and I'll show you the law.
2) Kerala High Court has adequate representation
Second reason cited by the government for refusing to accept the collegium's recommendation to appoint justice KM Joseph was that the SC already had a judge from Kerala HC. It said, "Shri Justice KM Joseph's parent high court is the Kerala High Court. If he is to be appointed as judge of the Supreme Court, the Kerala High Court - a comparatively small high court - would have two judges from the same parent high court in the Supreme Court."
Currently, three judges in the SC, out of 25, are from Delhi HC, three from Bombay HC and two each from the HCs of Allahabad, MP, Karnataka and Andhra Pradesh. The government, however, argued that Kerala HC is a small court. But if Delhi High Court with approved strength of 60 can have three judges in the SC why can't Kerala have two Supreme Court judges with an approved strength of 47?
3) Several high courts are unrepresented
The government says that "The high courts, namely Calcutta, Chhattisgarh, Gujarat, Rajasthan, Jharkhand, Jammu & Kashmir, Uttarakhand and some smaller high courts namely Sikkim, Manipur, Meghalaya are not represented in the Supreme Court at present." This is true. On May 12, 2016, four new judges to the Supreme Court were sworn in. They were justice AM Khanwilkar, justice DY Chandrachud, justice Ashok Bhushan and the former additional solicitor general L Nageswara Rao. Justice AM Khanwilkar and justice DY Chandrachud were from Bombay HC. Why wasn't this consideration used in that case?
4) No representation of Scheduled Caste/Scheduled Tribe
The last objection of the government to the collegium's suggestion was about not having a representation from Scheduled Caste or Scheduled Tribe. It said, "It may also be relevant to mention here that there is no representation of Scheduled Caste/Scheduled Tribe communities in the Supreme Court since long."
After the Modi government came to power, 16 judges were appointed to the apex court but none of them are either SC or ST. If the government is really so concerned about giving representation to these communities in the apex court shouldn't it have raised it with the collegium in the past? Why has this wisdom prevailed on them now?