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Breaking: Petition filed in SC to set aside rejection of recommendation to elevate Justice KM Joseph

Aditya AK

A former district judge has filed a petition in the Supreme Court seeking an order to set aside the Central government’s rejection of the elevation of Justice KM Joseph to the apex court.

The petition was filed two days after Union Law Minister Ravi Shankar Prasad made public the reasons behind the Centre’s decision to segregate the names of (now Justice) Indu Malhotra and Justice Joseph, and to reject the latter’s elevation.

The petitioner, former district judge at Solapur, Maharashtra, GD Inamdar, has stated that the petition has been filed to “uphold the institutional integrity and independence of the Indian Judiciary, especially the Supreme Court of India, which the Union Executive/Central Govt is brazenly attempting to trample upon”.

While the petitioner states that he has no qualms about the appointment of Justice Indu Malhotra, he contends that it is not permissible to segregate the name of one of the two recommendations while approving the other.

“If the Government had any reservations on either of the two names recommended, then the entire file must be sent for the reconsideration of the collegium. It is not permissible to segregate. It is not permissible to pick and choose.”

The petition then goes on to counter the reasons given by the Centre for the non-appointment of Justice Joseph. On April 26, Law Minister Prasad had given three primary reasons for the same, namely lack of seniority of Justice Joseph, over-representation of the Kerala High Court, and lack of judges in the Supreme Court belonging to the SC/ST community.

On the seniority aspect, the petition points out that the Collegium had taken the same into consideration while endorsing Justice Joseph for elevation. It has relied on the Second and Third Judges cases to show that seniority is not the prime consideration for elevation to the Supreme Court.

“It is not permissible for the Central Govt. to sit as an Appellate Authority over the wisdom of the recommendations made by the Collegium. Since the recommendation discusses the seniority issue and endorses Justice KM Joseph in that regards, it is not open for the Central Govt to take a contrary view and return the recommendation.”

It is also contended that the argument that there already exists a judge from the Kerala High Court in the Supreme Court, is baseless.

“The size of a High Court is never a criterion for appointment to Supreme Court. The Delhi High Court with strength almost identical (48) to that of Kerala HC has three Hon’ble Judges in this Court.”

Further, the point is made that the other judge from the Kerala High Court, Justice Kurian Joseph, is due to retire in November this year. It has also been pointed out that the Centre signed off on the appointments of two judges from the Karnataka High Court (Justices Mohan M Shantanagoudar and Justice Abdul Nazeer) last year.

Countering the ground that there is no SC/ST judge at the Supreme Court, the petition states,

“The ground of SC/ST representation is a farce in so much as the Supreme Court currently has 7 vacancies and the same will rise to 9 by July this year and further rise to 12 by the end of this year. Stalling the elevation of Justice K.M Joseph in no way prevents the Collegium from recommending any SC/ST judge, if it deems fit in its wisdom. The ground for an SC/ST judge cannot be used as ex post facto ground to “reject” the recommendation of the Collegium.”

The petitioner also takes the view that the real reason behind the Centre’s reluctance to elevate Justice Joseph stems from his decision against it in the Uttarakhand President’s Rule case.

“Under the garb of “reconsideration” the Central Govt effectively seeks to veto the decision of the Collegium and de facto prevent the names of those whom it considers “inconvenient” or worse still, whom it seeks to “punish” for daring to pass independent judgments, which may not be palatable to the Central Govt.”

It also points out that this was the very reason behind it which it had earlier refused to process the Collegium’s recommendation to transfer Justice Joseph to the High Court of Judicature at Hyderabad.

Moreover, the petition claims that this is not the first time the Centre has attempted such a move. It refers to the controversy regarding the proposed elevation of Gopal Subramanium to the Supreme Court.

“It is a matter of public record that the then Chief Justice of India, Justice R.M. Lodha had written a strongly worded letter in June 2014 to the Central Government reprimanding the latter for segregating the name of Mr. Gopal Subramaniam, Senior Advocate, and rejecting his appointment without consulting the Chief Justice or the Collegium.”

It also makes the claim that the Centre’s failure to process hundreds of recommendations for appointment to various High Courts is “illegal and impermissible” and constitutes a “grave and direct attack on the primacy and independence of the Judiciary”.

Therefore, it has been prayed that the Centre’s rejection of Justice Joseph’s appointment be set aside, and that it immediately act on the Collegium’s recommendation to appoint the Chief Justice of the Uttarakhand High Court. A direction to the Centre to not segregate names recommended for elevation has also been sought for.

Another prayer is for a direction to the Centre to expeditiously process the recommendations for appointments of judges to the high courts.

The petition has been filed by Sunil Fernandes and settled by Senior Advocate Kapil Sibal.

It will be interesting to see if the Court will take this matter up on the judicial side. Just yesterday, the Collegium deferred its decision to reiterate the recommendation to elevate Justice Joseph.

Read the petition: