New Delhi: Days after the Centre asked the Collegium to reconsider the elevation of Justice KM Joseph to the Supreme Court, all eyes are on the CJI-headed body to see if it reiterates its January 10 recommendation.
The Collegium, which is headed by CJI Dipak Misra and comprises four other senior-most judges of the Supreme Court, had unanimously recommended the names of Uttarakhand HC Chief Justice KM Joseph and senior advocate Indu Malhotra for judgeship in the country’s top court.
While Malhotra made it to the apex court, the government asked the Collegium to reconsider its recommendation on Justice Joseph’s elevation, saying the proposal was not in accordance with the top court's parameters. It also said that there was adequate representation of Kerala, from where Joseph hails, in the higher judiciary.
Justice KM Joseph had headed the bench that had quashed the BJP-led Centre’s decision to impose President's Rule in 2016 when the Congress was in power in Uttarakhand. His name was unanimously recommended by the Collegium comprising Chief Justice Misra and justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph.
While Justice Kurian Joseph has hinted at a possible reiteration by the Collegium, former Supreme Court judges told News18 that the CJI has to take a call in consultation with other judges in reiterating the name and that he is not “master of the Collegium” like he is the “master of the rolls”.
According to former SC judge PB Sawant, all judges have an equal say in the Collegium and “government objections need to be examined before a call is taken”.
“The CJI is only a member of the Collegium. The appointment has to be approved by the Collegium and only then is it sent to the government. If it is not approved by the government and a reaction is to be sent, then the entire Collegium meets and an opinion is sent,” Justice Sawant told News18.
He maintained that “the Collegium will examine the reasons given for rejection by the government” and “it is the law that a reiteration must be accepted”.
“It is the law that the decision given by the CJI along with four other judges should be accepted by the government unless there are objections, which they should forward to the Supreme Court. Objections are examined by the Collegium and seen whether the government decision should be accepted or not. It is the Collegium which will decide this and not the CJI alone. This is the rule,” said Justice Sawant.
Another former Supreme Court judge, Justice Ashok Kumar Ganguly, who has seen the functioning of the Collegium from close quarters, said that “reiteration of Justice Joseph’s name must be there as everyone expects so”, especially when the reason given by the government was not something which was “discovered after recommendation of the Collegium”.
“The Collegium needs to reiterate the name of the judge and that is everybody’s expectation. This needs to be a joint decision like it was a unanimous decision in January (when the recommendation was made). Once reiteration is made, the government has no choice but to accept it,” said Justice Ganguly.
“The circumstances cited by the government to stall the appointment, that he (Justice KM Joseph) is not the senior-most or that he belongs to Kerala, were all known facts. It was not that these facts were revealed when the Collegium made the recommendation. Hence, there is no ground to delay reiteration now. It should be done,” added Justice Ganguly.
Recalling his own tenure at the apex court, Justice Ganguly clarified that “now there is a split in the Collegium which is very evident”.
“At the time when I was in the apex court, there was no split. Now the split is evident. The fact that four judges decided to come out in the open shows their unhappiness. It was stated that things are not well with the Supreme Court,” said Justice Ganguly.
But is there a chance that the Collegium does a rethink on its January 10 decision to recommend Justice KM Joseph’s elevation? What if the CJI dissents?
Justice Ganguly believes that since “the CJI is not the master of the Collegium, reiteration will not be hampered unless two judges decide to say no to Justice Joseph’s elevation.”
“Master of the Roster is an established judicial precedent. But in the Collegium, all judges have similar weightage to their opinions. The Chief Justice is not the master of the Collegium, but certainly a very important member of the Collegium. He is the first among equals. But he is not the master of the Collegium. His opinion is as valid as the opinion of the other judges. But if two judges in the Collegium say no, then the name of the judge has to be dropped. But even if one judge dissents, be it the CJI, reiteration will take place,” said Justice Ganguly.
So is the recent tussle between the Collegium and government new in judicial appointments? Maybe not.
Senior advocate Gopal Subramanium’s name was recommended for elevation to the Supreme Court by a Collegium headed by then Chief Justice RM Lodha. Subramanium was recommended by the Collegium along with Justice Rohinton Nariman. The Law Ministry then cleared Justice Nariman’s name, but did not approve Subramanium. This happened in the absence of Justice Lodha and before a reiteration could take place, Subramanium had withdrawn his candidature.
Next was the case of Justice Jayant Patel, who, while being the Gujarat High Court judge, had ordered a CBI investigation into the Ishrat Jahan murder case. When Justice Patel was supposed to be elevated as the senior most judge of the Karnataka HC, where he would have stood the chance of being the Chief Justice, Justice Patel was transferred to the Allahabad HC, where he would be the third most senior judge. However, before the transfer could take place, Justice Patel resigned from office.
The case of Justice Valmiki Mehta had proved to be the primary bone of contention between the Collegium and the Centre. Justice Mehta was recommended by the Justice TS Thakur-led Collegium, but like it happened in the case of Justice KM Joseph, the government did not approve. This led to frequent confrontations between Justice Thakur and the government. Later, Justice JS Khehar took over as CJI and the proposal of the government to transfer Justice Mehta out of the Delhi High Court was accepted.
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