Govt should have consulted CJI before taking a call: Legal experts

Legal experts on Thursday questioned the Centre’s decision to segregate the files of Uttarakhand chief justice KM Joseph and senior advocate Indu Malhotra, who had both been recommended together by the Supreme Court collegium for elevation to the top court.

On Thursday, the government asked the collegium to reconsider its nomination of Joseph after clearing the appointment of Malhotra the previous day.

It was a step which the government should not have taken without consulting the Chief justice of India (CJI), some experts said.

Former additional solicitor general and senior Supreme Court advocate Raju Ramachandran said the government should have consulted the CJI and the collegium that in January recommended the names of Justice Joseph and Malhotra. He referred to former CJI RM Lodha’s three-year-old letter cautioning the government against attempt to de-link senior advocate Gopal Subramanium’s file from that of three others. Subramanium’s name was sent back to the collegium for reconsideration, after which the lawyer withdrew his consent for elevation.

Ramachandran also criticised the government for sitting on the files for three months, only to send one back for reconsideration. “I feel the collegium should not have allowed the matter to linger. Government has been sitting over it for three months. Despite letters by senior judges against executive interference, the CJI neither called a full court meeting nor constituted a bench to deal with the issue,” he said.

Senior advocate and Supreme Court Bar Association president Vikas Singh described the development as disturbing. “It is a very serious matter. I ask the government what kind of investigation it conducted in three months. This decision was known to all of us since day one and the Centre took three months to revert. This is nothing but a pressure tactic on the judiciary. As judges are due to retire this year, the CJI and collegium will be forced to accept whatever appointments are made,” Singh said. He is likely to file a petition on the issue once SCBA executive approves it.

Senior advocate Shekhar Naphade found nothing wrong in the segregation of files but said the time taken by the government to make a decision was worrying. “...there is urgent need for the court to give a judicial pronouncement on the issue of how long a government can sit over a file,” Naphade said. According to him, the CJI must constitute a bench, comprising not less than 13 judges, to thrash out the issue. “A five-judge bench would not be sufficient as there is a possibility of a larger bench overruling the verdict.” Senior advocate Dinesh Diwvedi said the government should have reverted within a reasonable time to the collegium if it disagreed with the recommendation. “Such a move hits out the independence of judiciary,” the counsel said.