The tug of war between the Parliament and the Supreme Court (SC) is not new. On April 23, 1985, in the Shah Bano case, the SC granted maintenance to a divorced Muslim woman. The verdict was nullified by Parliament. On January 20, 2012, the SC granted tax relief to telecom operator Vodafone. The verdict was nullified by Parliament. Such examples abound.
Likewise, the Supreme Court too has, time and again, struck down constitutional amendments brought about by Parliament. Still fresh in memory is the SC striking down the 99
th Amendment of the Constitution, which set up National Judicial Appointments Commission (NJAC). The tussle between Parliament and the Supreme Court continues.
Now, the executive too has joined the fray in search of acquiring more power. On April 26, the government (law minister) asked the Supreme Court collegium to reconsider its proposal to elevate Uttarakhand High Court Chief Justice KM Joseph, an outstanding judge, to the SC. The government stated that the elevation may not be appropriate and wrote a long letter to the SC collegiums through the Chief Justice of India (CJI).
Various grounds of seniority, regional representation and SC judgments were raised. It was stated that the government’s rejection of Justice Joseph’s name had the approval of the President and the Prime Minister. This is rather unusual. Did the President sign the file? If so, did he act on the aid and advice of the government? Why did the government sit over the file for 97 days before clearing Indu Malhotra’s well deserved elevation, but declining simultaneously Justice Joseph’s elevation? How could the government have segregated two names in contravention of the directive issued in 2014 by the then Chief Justice of India (CJI) RM Lodha?
The law minister’s letter reads, inter-alia, as : “The government is firmly of the view that the judgments in the Second and Third Judges’ case, both decided by nine Judge Bench of the Supreme Court , are to be borne in mind while making appointments to a very important and high constitutional office of a Supreme Court Judge.” It is preposterous on the government’s part to assume that the SC collegium has not considered its SC’s own judgments while recommending Justice Joseph’s name. Besides, it is entirely the prerogative of the SC collegium to select and recommend appointment of a judge, whom to appoint first, who should be appointed next, and in which order of seniority.
Now the government is trying to usurp the collegium’s power by dictating not to appoint Justice Joseph “at this stage”. If the collegium yields, then effectively the government decides inter-se seniority of judges in the SC, which would be destructive of the independence of the judiciary. The collegiums can never allow this to happen. All the grounds mentioned for referring back Justice Joseph’s name are utterly untenable because six vacancies exist in the SC. How can the government assume that the collegiums will ignore various parameters stipulated in SC judgments while filling the remaining vacancies? The potential reason to stall elevation of Justice Joseph evidently is the verdict that he delivered against the government quashing the President’s rule in Uttaranchal Pradesh in 2016.
In its attempt to block appointment of Justice Joseph, the government argues that there is “adequate representation” of Kerala High Court in the Supreme Court and in various High Courts as Chief Justices. The government names Justice Kurian Joseph (SC), and the three Chief Justices, namely KM Joseph (Uttarakhand HC), TB Radhakrishnan (Chhattisgarh HC) and Antony Dominic (Kerala HC). Justice Dominic retires on May 29, 2018 and Justice Kurian Joseph retires on November 29, 2018. So, with the elevation of Justice KM Joseph in the SC now, well before the year ends, Kerala HC will have representation of only one judge in the SC and only one Chief Justice in a HC. Thus, the government’s argument is specious and must be rejected outright.
It is evident that the government has not been able digest the NJAC (National Judicial Appointments Commission) verdict delivered by the SC on October 16, 2015. The verdict restored the collegium system. The government is now attempting to usurp collegium’s power in violation of NJAC verdict. The SC collegium must immediately reiterate unanimously its recommendation to elevate Justice Joseph to the SC. The government’s design to block appointment of clean independent judges must be thwarted.
(The writer is a former additional solicitor general of India and senior advocate, Supreme Court of India. The views are personal.)