JOIN USThe reasons given by the government for the return of the Supreme Court Collegium’s recommendation for the elevation of Uttarakhand Chief Justice K M Joseph to the top court are unconvincing. The government accepted the name of lawyer Indu Malhotra for appointment, but wrote to Chief Justice of India Dipak Misra that the name of Justice Joseph was being returned as the Collegium did not follow the norms of the Supreme Court in making the recommendation. The only qualifications prescribed by the Constitution for a Supreme Court judge are that he or she should be a high court judge or a lawyer with experience or a distinguished jurist. But some norms have evolved over the years related to seniority or representation for regions, states, communities etc. The government has invoked them in the case of Justice Joseph. The Collegium had, in fact, mentioned them, but stated that he was the most deserving judge for elevation.
Seniority has not been an important consideration in judicial appointments. Four incumbent judges of the Supreme Court had many other judges senior to them in various high courts when they were elevated. Justice Deepak Gupta had 50 other judges who were senior to him. Norms like representation for states, high courts, communities etc were never strictly followed till now. In any case, these have never been invoked to reject the appointment of a judge who had a fine judicial record and merit on his side. There are other vacancies in the court which can be filled up in accordance with these norms. That is why the government’s decision has given rise to the suspicion that Justice Joseph is being penalised for his 2016 judgement which quashed the imposition of President’s Rule in Uttarakhand and led to the restoration of the Congress government there. If it is meant to be a punishment for Justice Joseph and a warning to others, that is an attack on judicial independence and autonomy.
There is no good explanation for the government sleeping on the Collegium’s recommendation for three months. The reasons cited by the government existed even at the time of the recommendation in January. This, too, raises questions about the government’s bona fides. In 2014, when the name of Gopal Subamaniam was returned, the then Chief Justice of India R M Lodha wrote to the government not to repeat that procedure. But Justice Misra’s response was mild. He said that the government had the right to return the recommendation. The government’s right is not disputed. The question is whether the right was exercised well and correctly. This assumes importance in the context of the perception that the government is increasingly trying to control the judiciary.