Justice delayed

But can Justice KM Joseph be denied a Supreme Court appointment?

At the heart of the latest stand-off between the Executive and Judiciary over the returning by the Government for reconsideration to the Collegium, comprising the Chief Justice of India and the next four senior-most Justices, the name of KM Joseph, Chief Justice, Uttarakhand High Court, is the still-unresolved procedure for appointment of judges to the highest court in the land. Unresolved, to the extent that while the Collegium System established in pursuance of Supreme Court judgments whereby judges decide among themselves who will be elevated to protect the independence of the judiciary is clearly laid down, the political establishment, which was in favor of a National Judicial Appointments Commission (NJAC) that would have representation from the Executive as well as Civil Society on the guarding-the-guardians principle that was rejected by the Supreme Court, is still not reconciled to this turn of events. Indeed, tucked away towards the end of the communication by the Union Law Minister to the Chief Justice of India decoupling of the two names proposed by the Collegium for elevation to the Supreme Court, those of senior advocate Indu Malhotra and Justice KM Joseph, the first having been given the nod and second not, was an iteration that:  “The Collegium System is a creation of the judicial decision of the Supreme Court (emphasis ours).” Therein lies the rub.

It is in the above context that we must, for a better of understanding of the motivations of both the Judiciary and the Executive, examine the developments emanating from Thursday's decision by the Government to send Justice Joseph's name back to the Collegium for reconsideration. The grounds on which it has done so are, according to most sober and informed former and current members of the Bar and Bench, rather flimsy. Seniority, over-representation of a particular State (Kerala) and under-representation of particular communities (SC/ST) do not make for a compelling argument, critics of the Government decision point out, because it is to be assumed that the Collegium had already gone into these issues before making its recommendations with merit, of course, being the over-riding consideration.

That is where the Government, however, is clearly indicating, by taking the very serious step of asking the Collegium to reconsider its recommendation, that it feels the Collegium has not applied its mind on these issues raised by it in its communication. Further, though this is left unstated we freely draw the inference, matters may not have come to such a pass if the consultative process involving all stakeholders as envisaged in the NJAC had been in place, seems to be the unambiguous message from the Union Law Ministry. In playing hardball, as it were, though, the Government has exposed itself to the charge that Justice Joseph is being objected to for the judicial order he passed restoring the Uttarakhand Congress Government dismissed by the Centre. The Government, which has some of the top legal brains in the country in the Cabinet, also knows that the extant rules governing the appointment of Supreme Court judges mean that if the Collegium reiterates Justice Joseph's name and sends it back to the Government, and it is inconceivable that it will do any different, the latter has no choice but to approve it. But, and this is the nub, there is no time limit laid down for the Government in this regard.

A collision between the Court and the Government is therefore likely in the near future unless the Government, having delivered the message it wanted to by its reconsideration snub which it was fully within its rights to, backs off and speedily approves Justice Joseph's name ideally with the same seniority as the other judge elevated with him when it is sent to it again by the Collegium.