SC Collegium defers decision on Centre's demand to reconsider Justice Joseph's elevation

The Supreme Court Collegium on Wednesday deferred a decision on the Centre's communication asking it to reconsider its recommendation to elevate Uttarakhand Chief Justice K M Joseph to the apex court that could trigger a faceoff between the executive and the top court.

The decision by the Collegium or a group of five most senior judges was kept in abeyance amid the Centre's rejection of suggestions that it turned down the elevation of justice K M Joseph last week as the bench headed by him had quashed the imposition of President's Rule in Congress-ruled Uttarakhand in 2016 by the Modi government.

Legal experts opined that the government was bound to appoint Justice K M Joseph as a Supreme Court judge if the collegium reiterates its recommendation while government sources said a fresh reconsideration can be sought. However, the experts, who included Dushyant Dave, said there was no time-frame for implementing the collegium's recommendation.

The Collegium comprising Chief Justice Dipak Misra and justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph met after the top court's working hours.

Besides Justice Joseph, the agenda of the Collegium was to deliberate on the names of some judges from Calcutta, Rajasthan and Telangana & Andhra Pradesh High Courts for elevation as apex court judges.

The resolution of the meeting uploaded on the apex court website said the Collegium had met "to consider the following agenda:

'To reconsider the case of Mr Justice K.M. Joseph, Chief Justice, Uttarakhand High Court , pursuant to letters dated April 26and 30, 2018 received from Ministry of Law & Justice, Government of India and also to consider the names of Judges from Calcutta, Rajasthan, and Telangana & Andhra Pradesh High Courts for elevation as Judges of the Supreme Court, in view of the concept of fair representation. Deferred," the resolution said.

Justice Chelameswar, who had not attended the court on Wednesday, came for the collegium meeting.

There was no official word on when the Collegium would meet again amid reports that it may do do so next week.

Justice Joseph's name was recommended along with then senior advocate Indu Malhotra on January 10 for their elevation as apex court judges. The government had on April 26 declined to accept the recommendation of the Collegium and asked it to reconsider Justice Joseph's name, saying the elevation may not be "appropriate".

Malhotra was sworn in as the judge of the apex court on April 27.

The government had said that the proposal for his name was not in accordance with the top court's parameters and there was adequate representation of Kerala in the higher judiciary from where he hails.

His seniority was also questioned by the Centre which had said "he stands at Sl. No.45 in the combined seniority of High Court Judges on all-India basis."

Justice Joseph, who turns 60 this June, has been the Chief Justice of the Uttarakhand High Court since July 2014. He was appointed a permanent judge of the Kerala High Court on October 14, 2004 and assumed charge of the Uttarakhand High Court on July 31, 2014.

The members of the collegium have earlier expressed concern over government's delay in clearing the name of the Uttarakhand Chief Justice as the apex court judge.

Notwithstanding the letters written by the collegium members to the CJI which had come into the public domain, the Centre disregarded the recommendation about Justice Joseph.

Law Minister Ravi Shankar Prasad said the Centre has the right to seek reconsideration of proposals sent by the Supreme Court collegium as the power flows from three apex court judgements.

In a letter to the CJI, Prasad had said the government's rejection of Justice Joseph's name has approval of the President and the Prime Minister and also flagged that the SCs/STs have no representation in the Supreme Court since long.

Responding to questions by reporters on the decision to stall Justice Joseph's appointment to the top court, Prasad said that "sponsored allegations" are being levelled against the government by "the Congress party in particular and others in general" that Joseph's appointment was stalled due to his Uttarakhand President's Rule verdict.

"I wish to deny with all authority at my command. It has nothing to do with that at all," he said.

He said there are two "obvious reasons" to support his stand.

"A proper government with 3/4th majority has been elected in Uttarakhand. Second that order (of Justice Joseph) was confirmed by Justice J S Khehar of the Supreme Court, who had also set aside the National Judicial Appointments Commission Act, yet he became the CJI in the NDA government ... I deny these insinuations," the minister said.
 

Through the NJAC law, the government had sought to have more say in appointment of Supreme Court and high court judges.

Prasad said that the right of the government to seek a reconsideration of the proposals made by the collegium is granted to it by the Supreme Court judgements of 1993, 1998 and 2015 relating to the collegium system.

Senior Congress leader Kapil Sibal hoped that the deferment of Supreme Court decision is temporary and that it will soon reiterate its earlier recommendation.

"Hope this deferment is only temporary and the collegium will soon reiterate its earlier recommendation,"