Unthinkable to stay Indu’s elevation as SC judge: CJI Dipak Misra

NEW DELHI: The Chief Justice of India, Dipak Misra on Thursday called it ‘unthinkable’ to put on hold the appointment of senior advocate Indu Malhotra as a judge in the Supreme Court.This came just hours after the Government returned the collegium’s recommendation to elevate Uttarakhand High Court Chief Justice KM 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.

“It is unthinkable, unimaginable, inconceivable, and never before heard to stay Indu Malhotra warrant of appointment,” CJI Misra told a team of senior advocates who sought stay on warrant of appoint until the concerns over the elevations were addressed.The CJI said nobody perhaps understands the gravity of the situation and the Collegium will take an objective view as and when the government acts.

READ | Elevation of Justice KM Joseph: Government’s reasoning for rejecting Supreme Court collegium’s recommendation doesn’t hold water

Senior advocates Indira Jaising, CU Singh and Vikas Singh, representing the SC Bar Association, claimed the unilateral segregation of Justice KM Joseph’s name is a direct attack on the judiciary independence.“Is it a demolition matter or a question of personal liberty? There is no question of staying the warrant of appointment. How do you know what the government has done? If they have sent back a name for reconsideration, they are well within their rights to do so under the Constitution Bench judgments. We will now examine it,” he said.

Accusing the government of cherry picking, Jaising said the government has cleared Malhotra’s appointment while withholding Justice Joseph’s because he had quashed President’s Rule in Uttarakhand.However, the court said it was ready to consider the larger issue and the petition would be taken up in due course.Echoing the same view, Justices AM Khanwilkar and DY Chandrachud also pointed out that if this strict principle of no segregation was applied, appointment process will be halted for the high courts.

“Suppose the Collegium sends 35 names for high courts. If the government wants us to reconsider two or three names, should they be allowed to sit over other names also? Imagine what will that do to the appointment. Should we apply different principles for appointments in high courts and the Supreme Court,” asked Justice Chandrachud.At this, advocate CU Singh argued that such segregation also raises the issues of seniority as now Indu Malhotra would be senior to Justice Joseph, if the latter is elevated sometime in the future.  The Bench agreed it could be an issue to be discussed.Meanwhile, the Central government, on Thursday, issued the notification to appoint Malhotra as a judge. She will be sworn in on Friday by the CJI.

Grim situation
There are 406 vacancies in various high courts in the country, which are functioning with just 673 judges as against a sanctioned strength of 1,079. Even the Supreme Court is functioning with only 26 judges against a sanctioned strength of 31 judges. With senior advocate Indu Malhotra’s swearing in on Friday by the CJI, the number of judges in the top court will go up to 27.

Point-counterpoint
Senior advocates Indira Jaising, CU Singh and Vikas Singh, representing the Supreme Court Bar Association, claimed that the unilateral segregation of Justice KM Joseph’s name is a direct attack on the independence of the judiciary. However, the CJI said that nobody perhaps understands the gravity of the situation and that the Collegium will take an objective view as and when the government acts.