The government today returned the collegium's recommendation to elevate Chief Justice K M Joseph as a Supreme Court judge, saying the proposal was not in accordance with the top court's parameters and there was adequate representation of Kerala in the higher judiciary from where he hails.
Justifying its stand of returning the recommendation, the Centre sent a detailed note to Chief Justice Dipak Misra giving reasons to the Supreme Court collegium for its decision, including that seniority may not be an important consideration to ensure regional representation.
The note of the Union Law Ministry, addressed to the CJI who heads the five-member apex court collegium, said the proposal to reconsider Justice Joseph's name had the approval of President Ram Nath Kovind and Prime Minister Narendra Modi.
"It is also, in our considered view, not in accord with the parameters laid down by the Supreme Court itself in the Second Judges case and reiterated in Third Judges case," it said.
The Ministry said the collegium system was the creation of judicial decision of the Supreme Court and the terms and conditions and other parameters are also laid down in judicial orders governing appointment of judges in the constitutional courts.
"The seniority of judges also plays its own critical role. It is understood that seniority of judges of high court is only maintained at all India level. Obviously, this is reflective of their seniority and also the parent high court.
"From our records, it is evident that to ensure regional representation, seniority may not have been taken as an important consideration, but in case where the high court concerned is adequately represented in the Supreme Court and also as Chief Justices of different high courts, then this consideration cannot be, and should not be ignored altogether to the detriment and prejudice of other senior judges," it said.
On the acceptance of one of the two proposed names for elevation, the Centre said such segregation of proposals has been done in many cases earlier, including appointment of judges to various high courts and also to the Supreme Court in the interest of expeditious action of appointments and filling up vacancies.
Regarding judges in the top court from Kerala, it said that besides Justice Kurian Joseph who was elevated as a judge in the top court from the Kerala High Court on March 8, 2013, there were two other Chief Justices, Justices T B Radhakrishnan and Antony Dominic, whose parent high court was also the same.
The note said at this stage, the elevation of one more judge from Kerala High Court as an apex court judge does not appear to be justified as it does not address the legitimate claims of the Chief Justices and puisne judges of many other high courts and "forestalls" the claim of other senior chief justices and puisne judges.
"It would be appropriate to mention here that Kerala High Court has adequate representation in the Supreme Court and among Chief Justices in various high courts.
"Justice Kurian Joseph who was elevated as Supreme Court judge on March 8, 2013 is from Kerala High Court. Additionally, there are two chief justices namely Justice T B Radhakrishnan, Chief Justice of Chhattisgarh High Court and Justice Antony Dominic, Chief Justice Kerala High Court whose parent high court is Kerala," the note to the collegium said.
Besides the CJI, the collegium comprises four senior most judges of the apex court - Justices J Chelameswar, Ranjan Gogoi, M B Lokur and Kurian Joseph.
The collegium had on February 1 made pubic its resolution recommending the name of Justice Joseph for appointment as an apex court judge, saying he is "more deserving and suitable in all respects" than other chief justices and judges of the high courts.
Justice Joseph had hogged the limelight when a high court division bench, headed by him, had quashed in 2016 the imposition of President's Rule in Uttarakhand.
The collegium, headed by CJI, had met on January 10 and discussed on the vacancy of judges in the apex court, which has a sanctioned strength of 31 judges including the CJI, but its present strength is 24.
The collegium resolution had earlier said: "The collegium considers that at present 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 "
"While recommending the name of Justice Joseph, the collegium has taken into consideration combined seniority on all-India basis of Chief Justices and senior puisne Judges of High Courts, apart from their merit and integrity," the resolution had said adding "he stands at Sl. No.45 in the combined seniority of High Court Judges on all-India basis."
Two days after the Jan 10 collegium meeting, the four senior most judges Justices Chelameswar, Gogoi, Lokur and Kurian Joseph had held an unprecedented presser attacking the CJI and raising a litany of problems.
The issue of elevation of Justice Joseph has cropped up on several occasion after the presser and all the senior judges have written letters to the CJI expressing concern about executive interference.
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