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