Will the Centre (again) defy the Collegium’s call to elevate KM Joseph J?

Aditya AK February 14 2018

That the Judiciary and the Executive have been at loggerheads over judicial appointments for a very long time is no secret. And the latest victim of this tussle, if news reports are to be believed, is Chief Justice of the Uttarakhand High Court, Justice KM Joseph.

It has been widely reported that the Central government is not keen on giving its assent to the Supreme Court Collegium’s recent recommendation to elevate Justice Joseph to the Supreme Court. No such reservations have been expressed thus far regarding the other name recommended by the Collegium, that of Senior Advocate Indu Malhotra.

Ever since he struck down the President’s Rule imposed in Uttarakhand back in 2016 – a move that was seen as a huge embarrassment for the Modi government - the Centre has made its beef with Justice Joseph all but too obvious. This is evident in the fact that the file recommending his transfer to the High Court of Judicature at Hyderabad almost two years ago, has been relegated to some dusty cabinet in a Law Ministry office, where the government stores its discontent. An attempt to find the pulse of this document has borne little fruit, with the government revealing last year that it was “still under consideration”.

The Supreme Court Collegium is fully aware of the government’s vendetta against Joseph J. The Print quotes one of the senior most judges of the Supreme Court as saying,

“We knew there was a possibility that the government could use some excuse not to process the name (of Joseph). That is why it was decided to recommend only one name from among eligible high court chief justices…

…The majority of members of the collegium felt that the government should clear his name first before fresh recommendations are made.”

That the Collegium has recommended his name in spite of this speaks volumes of its confidence in Justice Joseph, as well as the judge’s competence. In fact, this is not the first time a Supreme Court judge has pushed for his elevation. Last year, Justice J Chelameswar had written a dissent note protesting the Collegium’s non-consideration of Justice Joseph for elevation to the apex court.

 

Justice Chelameswar had earlier batted for the elevation of Joseph J

 

The Centre, on the other hand, is far from impressed. And the circumstances under which Justice Joseph finds himself being recommended for elevation to the Supreme Court gives the Centre an excuse to oppose it.

Justice Joseph features quite low on the seniority list of high court judges, at the 45th position. Moreover, there is already one other judge at the Supreme Court who hails from the Kerala High Court and the Christian community. As was decided in the Second and Third Judges Cases, these factors play a role in considering elevations to the Supreme Court.

But the fact remains that seniority and regional/communal representation are not the only two parameters to be considered; merit has been indubitably held as the primary factor.

In the majority opinion of the Second Judges case, it was held,

“It is beyond controversy that merit selection is the dominant method for judicial selection and the candidates to be selected must possess high integrity, honesty, skill, high order of emotional stability, firmness, serenity, legal soundness, ability and endurance.”

The same position was reiterated in the Third Judges Case in 1998.

“Merit, therefore, as we have already noted, is the predominant consideration for the purposes of appointment to the supreme Court…

…Where, therefore, there is outstanding merit the possessor thereof deserves to be appointed regardless of the fact that he may not stand high in the all India seniority list or in his own High Court. All that then needs to be recorded when recommending him for appointment is that he has outstanding merit.”

While pushing for his elevation this time around, the Collegium has made it aptly clear that his merit outweighs other considerations. The resolution passed on January 10 states,

“The Collegium considers that at present Mr. Justice K.M. Joseph, who hails from 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 Judges of the Supreme Court of India.”

In light of these facts, the Centre’s defiance of the Collegium’s recommendations stands on shaky ground, and the allegation that it still holds a grudge against Joseph J for the President’s Rule judgment does not seem too far-fetched.

The latter sentiment was echoed in an earlier interview by Senior Advocate Avtar Singh Rawat, who regularly appears before Justice Joseph in the Uttarakhand High Court.

Avtar Singh Rawat

Senior Advocate Avtar Singh Rawat

 

“Chief Justice Joseph is what you call a 100% pure judge, in this matter [President’s Rule case] and otherwise also. He has an impeccable personality, and is brilliant and hard-working. After committing so many faults, he had given them (the Centre) a chance to take back the proclamation, but they refused. What other choice did they give him?

It is most unfortunate that it has affected his elevation; this kind of thing is part of our polity now. People holding such high positions must not consider even remotely that a person who is doing his duty as per law should be punished.”

Senior Advocate of the Gujarat High Court Yatin Oza, a staunch critic of the current dispensation, agrees. In this interview, he said,

“I need not say why [PM Modi] doesn’t want Justice Joseph to go to Hyderabad. This is what is bad. Simply because he has delivered a judgment against you? What type of judges do you want? Do you want judges to decide in your favour at the cost of being disloyal to the Constitution?”

Yatin Oza

Senior Advocate Yatin Oza

 

And as Oza pointed out, this is not the only instance in recent times of the Centre holding grudges against judges. According to him, the stalling of the transfer of Justice Joseph to the Andhra Pradesh High Court, and that of then Chief Justice of the Karnataka High Court SK Mukherjee to the Uttarakhand High Court, had a bearing on the elevation prospects of another judge who appeared to rub the union government the wrong way. That judge is, of course, Justice Jayant Patel. Back in 2016, Oza had said,

“[If CJ Mukherjee] cannot go to Uttarakhand, Justice Joseph cannot go to Hyderabad… by doing that they are stalling Justice Jayant Patel. During the (Ishrat Jahan) encounter cases, (former) Chief Justice Mukhopadhaya had assigned all the matters to Justice Patel…They wanted Justice Patel to act according to their wishes. But he is one judge who will never, ever ditch the Constitution. So, by not transferring Chief Justice Mukherjee, he is blocking Justice Patel, who is next in line (to become Chief) at the Karnataka High Court.”

In fact, it was Justice Patel’s resignation after he was recommended for transfer to the Allahabad High Court as opposed to being elevated as Chief Justice of the Karnataka High Court, and the subsequent vociferous calls for transparency in judicial appointments that led to the Supreme Court deciding, for the first time ever, to publish its deliberations in the public domain. As a result of that, it has become easier to gauge why exactly a judge’s elevation has been stalled.

Which brings us back to Justice Joseph’s case. Contrary to Justice Patel’s elevation, the Collegium seems to be unanimously in favour of appointing the former Kerala High Court judge to the apex court. It has been reported that the Collegium will insist on his elevation, even if the Centre raises objections against it.

The question is, what will the Collegium do should the Centre decide to sit on Joseph J’s file again, as it has done in the past?