KM JOSEPH CASE: SC IS ALSO RESPONSIBLE FOR THE MESS
‘G overnment snubs Supreme Court,’ said a headline last week, and one cannot call it a distortion. The fate of Justice KM Joseph will now depend on what the collegium does this week (and let us hope it does meet). If the five judges, including the Chief Justice of India, Dipak Misra, reiterate their recommendation, the government will have no option but to appoint him. If the government still dithers, it will be another big challenge. But even if one member of the collegium changes his mind, the recommendation will fall through, in accordance with the Third Judges case of 1998, in which the SC responded to a question of law regarding the collegium system. The real reasons for the government’s reservations about him are too obvious to be stated again. In an earlier NDA dispensation, the elevation of Justice BN Srikrishna to the Supreme Court went through with great difficulty (the Srikrishna Commission report on the Mumbai riots was unpalatable to an NDA constituent). Unfortunately, the inconsistent policies followed by different collegiums over the years on matters such as seniority, merit and due representation to different high courts and sections of society have made it easy for the government to raise plausible-sounding objections.
But this is also the occasion to ask the SC and the collegium some troubling questions. At the beginning of this year, the number of judges of the SC, including the CJI, was 25, which meant that there were six vacancies. Yet on January 10, the collegium recommended only two names: Justices Indu Malhotra and KM Joseph. Justice Kurian Joseph’s letter of April 9 to the CJI indicates that it was decided to send the names in a “phased manner”, citing “past practice” to avoid any “administrative or other difficulty”.
This doesn’t sound convincing since several recommendations and appointments have been made in one go, the most recent instances being of four appointments made together in mid-2016 (Justices AM Khanwilkar, DY Chandrachud, Ashok Bhushan and LN Rao) and five in early 2017 (Justices SK Kaul, MM Shantanagoudar, SA Nazeer, Navin Sinha and Deepak Gupta). When judges of the Supreme Court have chambers, bungalows, cars, transit accommodation and staff, this is puzzling. For a court weighed down with arrears like every other court in the country, the collegium needs to give us a better answer.
Having made its recommendation, matters were allowed to linger though the government was unresponsive. The fact that the government had reservations on the name of Justice KM Joseph was reported in the media in early February, and yet there was inaction. Justice Malhotra, who had suspended her practice in deference to a hoary tradition, was left with no option but to return to it. And now, a fait accompli is presented to the court with the appointment of Justice Malhotra and the return of the name of Justice KM Joseph.
The question here is not whether the government has the right or the power to segregate names sent in a single recommendation. Justice Chandrachud gave the good example of a recommendation to a large High Court like Allahabad, where 30 names can be sent together. The question is the need for inter-institutional courtesy in doing so. That is the point which former Chief Justice RM Lodha made when the name of Gopal Subramaniam was segregated without his knowledge and consent. The consent of the collegium ought to have been sought to process one name while returning the other for reconsideration.
And this is where the lack of harmony in the court has led to the present unhappy situation. The request of Justice Kurian Joseph on April 9 to take up this matter on the judicial side, namely the recommendation of these two names, was itself somewhat belated since the recommendation was already three months old.
If this request had been acted upon by the court taking up the matter suo motu, the government would have been compelled to disclose its stand. It was at that stage that the court could have judicially granted or refused permission to segregate the names. If only this had been done, the court would not look as diminished as it does today.