Despite the strongly worded recommendation of the collegium, there still exists some suspense on its acceptance by the NDA government. The government continues to be silent on the other name recommended to the government by the Supreme Court Collegium along with that of Malhotra — Uttarakhand High Court Chief Justice K M Joseph. Both names were proposed by the five-judge Collegium, headed by Chief Justice Dipak Misra, at its last meeting on January 10.

Kuttiyil Mathew Joseph is currently serving as the Chief Justice of Uttarakhand High Court.[1] Before his appointment as Chief Justice of the High Court of Uttarakhand on 31 July 2014, he had served as a Judge of Kerala High Court for more than 9 years. His father K. K. Mathew was a judge of the Supreme Court of India, and chairman of tenth Law Commission.

Today, CJI while responding to plea filed by 100 Lawyers said that, There is nothing wrong, the CJI said, if the Government wanted to reconsider Justice KM Joseph’s elevation to the SC recommended by the collegium. “If four names are sent for appointment and only two are cleared by the government, how can we say ‘you accept all or reject all’ ? How will courts function that way?” the CJI quipped.

Justice DY Chandrachud, according to reporters present in the court, said however that while it was against constitutional propriety to stop Indu Malhotra’s appointment, the question whether there is “cherry-picking” of names and whether it hampers judicial independence needs to be considered in-depth.

The Law Ministry writes to CJI in reply to turning down Justice Jospeh name for senority. The government’s ‘seniority argument’ however has been used “conveniently and inter-changeably, either cited as per initial appointment as a Judge or as a Chief Justice”, as an argument to push or nix names of judges. But after Chief Justice Altamas Kabir, other than Chief Justice M L Dattu, none of the Chief Justices were Judges who were Chief Justices in their Courts or seniormost by that yardstick when elevated.

Kapil Sibbal in a press conference said that,  “They are unwilling to accept the collegium’s recommendations but only want judges that are favourable to them.”

“The Collegium considers that at present Mr. Justice K.M. Joseph, who hails from the Kerala High Court and is currently functioning as Chief Justice of Uttarakhand High Court, is more deserving and suitable in all respects than other Chief Justices and senior puisne Judges of High Courts for being appointed as Judge of the Supreme Court of India,” the Collegium recorded in its signed resolution.

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The ALLEGED Pin Point

The bench headed by Justice Joseph had quashed the imposition of President’s Rule in 2016 by the Narendra Modi Led BJP government in the state of Uttarakhand restoring Congress leader Harish Rawat as the chief minister that time, nearly a month after he was ousted.

The court came down heavily on the central government for its March 27 move to dismiss Rawat under the much-contested article 356 that empowers the union cabinet to impose President’s Rule in a state.

The case “brings to the fore a situation where 356 has been used contrary to the law”, said the bench of Chief Justice K.M. Joseph and Justice VK Bist, adding the article should only be used as a last resort.

Here is what the bench headed by Justice Joseph said while quashing the plea for President Rule.

-The Governor is not an agent of the central government

-It is the first time in the history of India that a double whammy was being committed under article 356 of hitting the authority of the Governor and the speaker

-In no circumstances can a solitary instance be material enough for imposing article 356.

-There have been instances of thickly skinned governments in India lingering on. Besides the option of president rule, is the floor test not the best option to check whether they enjoy majority or not.

-If corruption was to be taken into account, hardly any government would be able to complete its 5 year term in India

-It was said that speaker had taken partisan attitude in case of Arya.It was completely non-existential. We are shocked that in a matter which engages the council and the court was a blatant falsehood.

-”Sitting in Delhi, the union cabinet and President cannot rely on anything else than the Governor’s report. What is there in Governor’s report that is speaking of the urgency of imposing President rule”.

-”There is no absolutism, President is not King. The President can be an excellent person but he can be terribly wrong, judges can also be terribly wrong”.

At the end of hectic parleys between top BJP leaders including BJP chief Amit Shah and union ministers Arun Jaitley and Rajnath Singh in the capital, the government decided to move the Supreme Court to challenge the ruling of two-member bench of the High Court headed by Justice K.M. Joseph.

Justices taking Stand for Justice

Recently, two other members of the Collegium, Justices Ranjan Gogoi and Madan Lokur had written to the CJI, demanding that he call a “full court” to discuss “institutional issues” and the “future” of the court. Justice Gogoi is expected to succeed CJI Misra who demits office in October.

“It is apparent that this decision of Justice K M Joseph’s non-elevation has been influenced by pressure from the government, especially in light of Justice Joseph’s bold decision striking down the imposition of President’s rule by the Centre in the state of Uttrakhand last year,” the statement claimed and demanded that the full text of Justice Chelameswar’s dissenting note to the collegium should be put in public domain.

Besides Chief Justice J S Khehar, who chairs the collegium, its other members are Justices Dipak Misra, Ranjan Gogoi and M B Lokur.

As reported in The Indian Express, Justice J Chelameswar had written on March 21 to all judges of the Supreme Court, asking CJI Misra to call a full court on the judicial side to discuss the issue of government interference in the appointment of judges to the high courts.

On April 9, Justice Kurian Joseph, another member of the Collegium, had written a strongly worded letter to CJI Misra and all judges, asking him to set up a bench of seven most senior judges to hear the matter of the government’s silence on the recommendations of the Collegium for appointment of Justice Joseph and Indu Malhotra. He said that three months had passed since the Collegium made the recommendations but the government had not moved on it.

“Failure to discharge their duty by sitting over on the recommendations of the Collegium doing nothing, in administrative law, is abuse of power. More than anything else, it sends a wrong message which is loud and clear to all Judges down the line not to cause any displeasure to the Executive lest they should suffer. Is this not a threat to the independence of the judiciary?”, Justice Kurian Joseph wrote.

[1] As on 26/04/2018