IF OK WITH CENTRE, IT’S OK WITH ME: CJI
Ok for Centre to reject Justice Joseph’s name, says Misra • Refuses to put Indu Malhotra’s elevation on hold till Joseph issue is cleared
"Is the Modi government above the law?" tweeted Chidambaram, questioning whether the hold up on Justice Thomas was because of "his state or his religion or his judgment in the Uttarakhand case."
The Centre on Thursday asked the Supreme Court collegium to reconsider its recommendation to elevate Uttarakhand High Court Chief Justice K M Joseph to the Apex Court, even as it approved the appointment of senior advocate Indu Malhotra as Supreme Court judge.
Union Law Minister Ravi Shankar Prasad on Thursday morning reportedly wrote to Chief Justice of India Dipak Misra in this regard. The CJI did not take the reverting of Joseph's name as an offence.
Instead, he said: "If they (the government) have sent back a name for reconsideration, they are well within their rights to do so under the Constitution Bench judgments. We will now examine it."
The CJI's remark came in response to some lawyers rushing to his court and urging him to put on hold the appointment of Indu Malhotra as the first woman elevated directly to the Supreme Court as a judge. He dismissed the prayer as "unthinkable."
"It is unthinkable, unimaginable, inconceivable and never before heard to stay her (Malhotra's) warrant of appointment," he said in response to senior advocates Indira Jaising, CU Singh and Vikas Singh pleading on behalf of the Supreme Court Bar Association that the "unilateral" segregation of Justice Joseph's name is a "direct attack" on the independence of the judiciary.
The CJI said nobody perhaps understands the gravity of the situation and that the Collegium will take an objective view.
Jaising had asked for staying of appointment of Malhotra until the concerns are addressed. All three lawyers said their concern is that independence of the judiciary must be saved at all cost.
Justices AM Khanwilkar and DY Chandrachud, who were the other judges on the Bench headed by the CJI, pointed out that if this strict principle of no segregation was applied, appointment process will be halted for the high courts.
"Suppose Collegium sends 30 names for high courts. If the government wants us to reconsider two or three names, should they be allowed to sit over other names also? Imagine what will that do to the appointments. Should we apply different principles for appointments in high court and the Supreme Court," asked Justice Chandrachud.
"Let a decision be first taken," added Justice Khanwilkar who may not be aware of the law minister's letter to the CJI. Perhaps even the CJI may not have read the letter as the law ministry sources gave advance publicity to it before it was acknowledged by the CJI's office.
One of the lawyers argued that such segregation also raises the issues of seniority. The Bench agreed that it could be an issue to be discussed, but there is no urgency to hear this case.
Meanwhile, the President signed the warrant appointing Malhotra as a judge in the top court. She is likely to be sworn in on Friday or on Monday by the CJI. The government has sent back the recommendation to make Justice Joseph a Supreme Court judge, urging the collegium to be "objective and fair" since his name was not recommended "in terms of seniority and merit and fair representation."
While the law minister refused to comment, his ministry sources said the government wants the collegium to explain why Justice Joseph was chosen despite other judges being senior. Former union minister and senior Congress leader P Chidambaram, who is also a senior advocate, tweeted that Justice Joseph was being punished for his decision to quash the President's rule imposed in Uttarakhand in 2016.
"Is the Modi government above the law?" tweeted Chidambaram, questioning whether the hold up on Justice Thomas was because of "his state or his religion or his judgement in the Uttarakhand case."
A month after his verdict, the Centre had also rejected the collegium's recommendation to shift him to Hyderabad as the Chief Justice of the High Court of Andhra Pradesh and Telangana.
The law ministry sources, however, claim the hold-up of Justice Joseph's name has nothing to do with the Uttarakhand verdict, asserting that the collegium did not go by seniority in recommending him despite being 45th in line and not the seniormost as claimed.