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It was a regular afternoon in the court of Chief Justice of India Dipak Misra. Or so it seemed.
However, the simmering tensions at the Bar over the stalling of the appointment of Justice KM Joseph by the Central government boiled over, with 100 lawyers filing a petition in the Supreme Court raising the issue.
Mentioned by Senior Advocate Indira Jaising at 2 pm, the petitioners prayed that the warrant of appointment of Justice Indu Malhotra be stayed till the appointment of Justice KM Joseph is cleared.
The prayer was rejected outright by CJI Dipak Misra, leading to a lengthy dialogue between the Bench and the lawyers.
“We are hundred lawyers who have filed this petition. This is about the appointment of Indu Malhotra while not clearing Justice KM Joseph. We have no issues whatever with Indu Malhotra and fully believe she is a deserving candidate. We are concerned about bifurcation [of the two files]. So, kindly stay the warrant of appointment [of Indu Malhotra]”, Jaising submitted.
This led to a strong response from CJI Dipak Misra.
“What kind of a prayer is this? No, no no. There is no question of staying the warrant.”
The Bench said that the Central government was within its rights to send back the file at the first instance, and that the Collegium will now deal with it.
“It will be dealt with appropriately. If it is sent back for reconsideration [by the Collegium], the matter ends there”, the Bench remarked.
Jaising then told the Court that the Centre cannot segregate files of judges which are sent together, and that it has to either reject or accept both the files.
The Bench, however, did not agree with this submission.
“So if twenty names are sent and they want to reject two, does that mean that rest of them also have to be rejected?“, asked Justice Chandrachud.
To this, Jaising replied,
“The Bar stands solidly behind Indu Malhotra. We are only opposed to cherry picking. We are worried about interference of the executive in the independence of the judiciary.
An impression has gone that certain judgments are not palatable and hence cherry picking. We all know which judgment. So when such cherry picking happens, there is an impression that certain people are rejected because of such judgments.”
The Bench was however firm that the prayer for stay of warrant of appointment would not be entertained.
“Inconceivable, unimaginable, unthinkable. Never never heard of.
If you raise an issue like Kathua we can understand your anguish. But what is this?“, demanded Misra J.
Supreme Court Bar Association (SCBA) President Vikas Singh then raised the issue of how seniority of a judge might be affected if his/her elevation is delayed. Advocate Gopal Sanakaranarayanan, who was present in the court for the Aadhaar case, also weighed in.
“Your Lordships have sent hundreds of names but they are sitting over it without doing anything“, he said.
The Bench agreed that the issue of seniority might be relevant in other cases though not in this one.
Jaising said that she will withdraw the prayer for stay of the warrant of Indu Malhotra’s appointment. However, she said that she would press the rest of the issues raised. An early listing was requested, but turned down by the Bench.
The matter will now be heard in due course.