Centre blocks 2 judge nominees of SC collegium

NEW DELHI: In a blow to the Supreme Court collegium, already bleeding from internal dissension, the Centre has cited breach of “seniority” to block recommendations to appoint Uttarakhand high court Chief Justice K M Joseph as a judge of the SC and Justice Surya Kant of Punjab and Haryana HC as CJ of the Himachal Pradesh high court.
The names of Justices Joseph and Kant were recommended by the collegium to the Centre on January 10 for appointment as SC judge and CJ of Himachal high court, respectively. That was two days before differences among them erupted in public, with Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph holding a press conference to criticise the decisions of Chief Justice of India Dipak Misra.

However, a month and 20 days later, the twin recommendations are yet to be implemented.

While making the unanimous recommendation on January 10, the CJI-headed collegium had said, “(Justice K M Joseph) is more deserving and suitable in all respects than other chief justices and senior judges of the high courts for being appointed as SC judge.”

While recommending the name of Justice K M Joseph, the collegium has taken into consideration combined seniority on all-India basis of chief justices and senior judges of HCs, apart from merit and integrity.”

The Centre is of the view that Justice K M Joseph is “too junior” and his appointment to the SC would breach two apex court judgments of the 1990s, through which the judiciary took over the executive’s constitutional power to select and appoint judges in consultation with the CJI. Law ministry sources said Justice Joseph was 12th in the list of seniority of CJs of 24 HCs and at the 45th position in the all-India judges’ seniority list.

Sources said the collegium’s recommendation breached the SC’s two judgments, which were categoric that “an HC judge has the legitimate expectation to be considered for appointment to the Supreme Court in his turn according to his seniority”. A bench headed by Justice K M Joseph had embarrassed the NDA government by quashing its decision to impose President’s rule in Uttarakhand in April 2016.

However, it is the January 10 recommendation of the collegium, comprising the CJI and Justices Chelameswar and Gogoi, for appointment of Justice Surya Kant as chief justice of Himachal HC which has generated a controversy with sitting and retired SC judges terming this a clear case of favouritism achieved through unjust supersession of Justice A K Mittal, who is senior to Justice Kant.

The three-member collegium, that decides appointment of HC CJs, acknowledged that Justice Mittal was senior to Justice Kant but said it found the latter “more suitable” for appointment as HC CJ. This was opposed by Justice Adarsh K Goel, who as a consultee judge had sought taking a fair view of the assets acquired in Delhi, Shimla and Punjab by Justice Kant after becoming a judge.

Former SC judge Ashok Bhan has written a threepage letter to the government slamming the collegium for deciding to supersede Justice Mittal, mainly on the basis of an Intelligence Bureau report of 2003 when he was being considered for appointment as a judge of Punjab and Haryana HC.

Justice Bhan said the intelligence report was discarded by the collegium headed by then CJI V N Khare. When Justice Mittal’s appointment was reprocessed, “then CJ of HC after taking fresh opinion from seven seniormost judges, reiterated Justice Mittal’s name for appointment as a judge of Punjab and Haryana HC”.

He said, “As per my understanding, Arun Jaitley, then law minister, after making discreet inquiries, forwarded his (Justice Mittal’s) case for appointment.” The former SC judge said, “What pained me is that Justice Mittal is sought to be superseded for appointment as CJ based on the IB report which was not accepted either by the SC collegium or by the government... This is not only unfair but against all cannons of justice and fair play.

Another interesting feature, which requires special mention is that two SC judges (Justices Ranjan Gogoi and A K Sikri), who had opposed supersession of Justice S S Saron in April 2017, have turned in favour of supersession now without any justification. Is it not playing favourites?”