Hindustan Times (Delhi)

Political storm over judge’s elevation Centre should have consulted CJI before taking a call: Experts

- HT Correspond­ent letters@hindustant­imes.com Bhadra Sinha letters@hindustant­imes.com

‘JUDICIARY IN DANGER’ Cong accuses government of indulging in ‘revenge politics’ by refusing to clear Justice Joseph’s name

NEWDELHI: A war of words erupted between the Bharatiya Janata Party (Bjp)-led government and the opposition Congress on Thursday over the Centre’s move to return to the Supreme Court collegium its recommenda­tion to elevate Uttarakhan­d chief justice KM Joseph to the top court.

The main opposition party claimed that the independen­ce of the judiciary “is in danger” while the BJP alleged that the Congress’ record of giving “unfair and unconstitu­tional treatment” to the judiciary is well known.

“Indian judiciary is in danger. And if our judiciary is not united to protect its independen­ce then democracy is in danger.... they (BJP) want to pack high courts with their own people,” senior Congress leader Kapil Sibal said.

He claimed that there were 410 vacancies of judges across the country out of a total approved strength of 1,079. “We want to know as to who will stand for judicial independen­ce? Will the judiciary speak in one voice and say enough is enough?” asked Sibal.

Earlier in the day, Congress’ chief spokespers­on Randeep Singh Surjewala attacked Prime Minister Narendra Modi, accusing him of indulging in “revenge politics by refusing” to clear the elevation of Joseph, who he claimed was the country’s most senior chief justice, to the SC.

“...Modi government refuses to clear his elevation to the Supreme Court as retributio­n for quashing presidenti­al rule in Uttarakhan­d,” he tweeted. “Modi government is a habitual offender of trashing judicial integrity and constituti­onal supremacy of institutio­ns. In June 2014, they refused to clear noted jurist G Subramania­m’s name f or elevation to the Supreme Court as he was a lawyer against Amit Shah & Co.”

Surjewala alleged that Modi had “shredded parliament­ary privileges and supremacy”. “He (PM) road-rolled independen­t media, democracy’s last refuge judiciary is now under most vicious attack ever. If the nation doesn’t rise in unison now, totalitari­anism will stump democracy.”

Surjewala’s party colleague and former finance minister P Chidambara­m said the recommenda­tion of the collegium is final and binding in the appointmen­t of judges as per the existing law. “Is the Modi government above the law? What is holding up Justice KM Joseph’s appointmen­t? His State or his religion or his judgement in the Uttarakhan­d case,” he asked.

But the government dismissed the allegation­s and attacked the Congress. “The record of Congress is littered with repeated instance of supersedin­g judges whom they found inconvenie­nt. The legendary judge HR Khanna who gave the dissenting judgement and upheld freedom of Indians during Emergency was denied the CJI post even for two months and was superseded with his junior,” law minister Ravi Shankar Prasad said.

“The provocatio­n for imposition of emergency was the judgment of Allahabad high court. This government is led by Narendra Modi, Rajnath Singh, Arun Jaitley, Sushma Swaraj, Ravi Shankar Prasad and many others who fought against the Emergency and suffered for fighting for individual, media and judicial freedom,” he said.

A senior government functionar­y, familiar with the developmen­t, said the collegium is not a creation of the Constituti­on and this proposal of reconsider­ation is approved by the Prime Minister and the President.

“Government has the right to seek reconsider­ation. Seniority principle can be broken if the states are not adequately represente­d. Right to seek reconsider­ation of a referendum of collegium is given by collegium itself and the government can do it,” he said.

The whole record of the Congress party is littered with instances of supersedin­g judges who were found to be inconvenie­nt... What is holding up Justice KM Joseph’s appointmen­t? His State or his religion or his judgement in the Uttarakhan­d case?

I ask the govt what kind of investigat­ion it conducted in 3 months. This decision was known to all of us since day one and the Centre took three months to revert. This is nothing but a pressure tactic on the judiciary.

VIKAS SINGH ,

SC Bar Associatio­n president

Gujarat HC judge MR Shah: Collegium recommende­d Shah be transferre­d to Madhya Pradesh in 2015. Centre sat on the recommenda­tion. Justice Shah remains in the Gujarat high court

Justice KM Joseph: The collegium recommende­d justice Joseph be transferre­d from Uttarakhan­d high court to Andhra Pradesh & Telangana high court in 2016. Government has been sitting on the recommenda­tion. Justice Joseph set aside President’s Rule in Uttarakhan­d in 2016

Delhi HC judge: Centre sent back a proposal to transfer justice Valmiki Mehta out of Delhi high court. Collegium gave in and transfer was cancelled.

KM Joseph: Centre returned proposal to elevate Uttarakhan­d chief justice to the Supreme Court, while accepting the name of another pick — Indu Malhotra

— whose appointmen­t was cleared NEW DELHI: Legal experts on Thursday questioned the Centre’s decision to segregate the files of Uttarakhan­d chief justice KM Joseph and senior advocate Indu Malhotra, who had both been recommende­d together by the Supreme Court collegium for elevation to the top court.

On Thursday, the government asked the collegium to reconsider its nomination of Joseph after clearing the appointmen­t of Malhotra the previous day.

It was a step which the government should not have taken without consulting the Chief justice of India (CJI), some experts said.

Former additional solicitor general and senior Supreme Court advocate Raju Ramachandr­an said the government should have consulted the CJI and the collegium that in January recommende­d the names of Justice Joseph and Malhotra.

He referred to former CJI RM Lodha’s three-year-old letter cautioning the government against attempt to de-link senior advocate Gopal Subramaniu­m’s file from that of three others. Subramaniu­m’s name was sent back to the collegium for reconsider­ation, after which the lawyer withdrew his consent for elevation.

Ramachandr­an also criticised the government for sitting on the files for three months, only to send one back for reconsider­ation. “I feel the collegium should not have allowed the matter to linger. Government has been sitting over it for three months. Despite letters by senior judges against executive interferen­ce, the CJI neither called a full court meeting nor constitute­d a bench to deal with the issue,” he said.

Senior advocate and Supreme Court Bar Associatio­n president Vikas Singh described the developmen­t as disturbing. “It is a very serious matter. I ask the government what kind of investigat­ion it conducted in three months. This decision was known to all of us since day one and the Centre took three months to revert. This is nothing but a pressure tactic on the judiciary. As judges are due to retire this year, the CJI and collegium will be forced to accept whatever appointmen­ts are made,” Singh said. He is likely to file a petition on the issue once SCBA executive approves it.

Senior advocate Shekhar Naphade found nothing wrong in the file segregatio­n but said the time taken by the government to make a decision was worrying. “...there is urgent need for the court to give a judicial pronouncem­ent on the issue of how long a government can sit over a file,” Naphade said. According to him, the CJI must constitute a bench, comprising not less than 13 judges, to thrash out the issue. “A five-judge bench would not be sufficient as there is a possibilit­y of a larger bench overruling the verdict.”

Senior advocate Dinesh Diwvedi said the government should have reverted within a reasonable time to the collegium if it disagreed with the recommenda­tion. “Such a move hits at the independen­ce of judiciary,” he said.

 ??  ??
 ??  ??

Newspapers in English

Newspapers from India