For the love of independence of judiciary, let us block appointment of judges

Yesterday, the Central government cleared the appointment of Senior advocate Indu Malhotra for Supreme Court but chose not to do the same for Justice KM Joseph whose name was recommended along with Malhotra’s name.

On April 19, the Central government issued a notification extending the tenure of Justice Ramendra Jain as Additional Judge of Punjab & Haryana High Court. This came despite the fact that the collegium had stood firm by its recommendation to make Justice Ramendra Jain a permanent judge of the Punjab and Haryana High Court.

Collegium had initially recommended that Justice Jain be appointed as a permanent judge of the Punjab & Haryana High Court on March 26 this year. The Centre had, however, returned the file stating that Justice Jain was due to be transferred to the Karnataka High Court. In doing so, it had failed to take into consideration that in July 2017, the Collegium had recorded special reasons for retaining Jain J. at the Punjab & Haryana High Court. This prompted Collegium to reiterate its recommendation.

And it is this reiteration which has been blatantly ignored by the Centre in retaining Jain J. as additional judge.

But are these isolated instances wherein the Central government has been defying the Collegium since the BJP government came to power. The answer is obviously a no.

Below are five such instances which made headlines.

Gopal Subramanium

This was the first and perhaps the most infamous of all the instances. Subramanium’s name was recommended for elevation to Supreme Court by the Collegium headed by then Chief Justice RM Lodha.  His name was recommended along with the name of Rohinton Nariman J. who was also practicing advocate at the Supreme Court. While Nariman’s name was cleared, the Law Ministry returned the file of Subramanium.

Upset by this, Subramanium withdrew his candidature. Justice Lodha later spoke during a function in Supreme Court stating that Subramanium should have waited till Lodha came back from his vacation (the Supreme Court was closed for vacation when these incidents transpired) and that independence of judiciary will not be compromised as long as he was at the helm.

Subramanium stayed away from law practice till the retirement of Justice Lodha before donning the Senior gown again.

Justice Jayant Patel

This was one case which should have set the alarm bells ringing. Appointment of Justice Jayant Patel as Chief Justice of High Court was being stalled which ultimately led to his resignation.

Justice Patel, who hails from the Gujarat High Court was transferred to the Karnataka High court, where he was serving as the senior-most puisne judge. He was set to take over as Chief Justice of the Karnataka High Court after the retirement of SK Mukherjee J. when he was transferred to Allahabad High Court. He would have had to join Allahabad High Court as the third senior-most judge when he chose to resign.

It was alleged by certain sections of the Bar that he was paying the price for directing a CBI investigation into the ‘quadruple murder’ in the Ishrat Jahan case.

His resignation led to an outrage at Karnataka and Gujarat High Courts but the Collegium refused to intervene stating that its decision was unanimous and taken after considering “inputs on-record”.

Justice KM Joseph

Justice Joseph would perhaps be one judge who has been haunted continuously after his judgment in the Uttarakhand Presidential Rule matter.

Justice KM Joseph is currently serving as the Chief Justice of Uttarakhand High Court. The Collegium had recommended that he be transferred to Andhra Pradesh & Telangana High Court way back in 2016. The same was never cleared by the Centre which said in 2017 that the file is “still under consideration”.

It was then that the Collegium decided that Justice Joseph should be elevated to Supreme Court recommended the same along with the name of Senior advocate Indu Malhotra in January this year. However, the Centre returned the file as expected and the Collegium has not reiterated its recommendation.

And yesterday, the Centre cleared the appointment of Indu Malhotra while Justice Joseph’s file remains in limbo.

Justice MR Shah

Justice MR Shah is serving as a judge of Gujarat High Court. The decision to transfer him to Madhya Pradesh High Court was taken by the Collegium headed by Justice HL Dattu way back in 2015. When the transfer was allegedly stalled by the Centre which was keen to retain him at Gujarat High Court, Senior advocate Yatin Oza had written two letters the Chief Justice of India alleging that Justice Shah’s transfer was stalled by the executive due to his “proximity to 1, Akbar road New Delhi and 7, Race Course Road New Delhi.”

In August 2016, then Chief Justice of India, Justice TS Thakur took a strong view of the reluctance of the Centre to clear the file. Thakur J. even threatened to withdrew judicial work from Justice Shah and another judge, Justice Valmiki Mehta. However, the Centre successfully brought time till the retirement of Justice Thakur after which Justice JS Khehar took over as CJI. With that, the transfer file of Justice MR Shah was buried.

Justice Valmiki Mehta

Like in the case of Justice MR Shah, Justice Valmiki Mehta of Delhi High Court is another case where the Collegium has to share the blame along with the Centre.

The recommendation to transfer Justice Valmiki Mehta was taken by the Collegium headed by former Chief Justice of India, Justice TS Thakur in March 2016. The Centre had refused to process the file for quite some time resulting in some strong observations by Justice Thakur during the hearing of a case concerning judicial appointments.

As in the case of MR Shah J. the Centre subsequently, sent the transfer files of the two judges back to the Collegium for reconsideration. And with the coming of Justice Khehar, the Collegium acquiesced to the Centre’s proposal to reconsider the decision to transfer Justice Mehta out of Delhi High Court.

The Central government and its leaders have been dubbing the allegations against the Chief Justice of India, Dipak Misra as an attack on the independence of judiciary.

A classic case of pot calling kettle black, for the BJP government, ever since it came to power in 2014, has lost no opportunity in arm-twisting the judiciary.

Murali Krishnan is Associate Editor at Bar & Bench. He tweets @legaljournalist.