The executive is diluting the collegium’s primacy

The present controversy concerning the non-elevation of Justice KM Joseph to the Supreme Court has arisen in the context of the Central Government unilaterally dissecting the recommendation of the collegium, by appointing one recommendee and not the other.

In terms of the law laid down in the Second Judges case, and fortified by the Third and Fourth National Judicial Appointments Commission (NJAC) Judges cases, the recommendations of the collegium are binding on the Centre.The Centre is entitled to communicate to the collegium “in exceptional cases alone”, “strong cogent reasons indicating that the recommendee is not suitable for appointment” but if the stated reasons are not accepted and the recommendation is reiterated by the collegium, “the appointment should be made as a healthy convention”.

There are two aspects to this controversy. One, whether the Centre is entitled to segregate or dissect the names recommended by the collegium and secondly, whether the reasons given by the Centre for not appointing Justice K M Joseph can be considered ‘strong’ or ‘cogent’.

As to the first aspect, while there is no clear position on whether such segregation is permissible (there is nothing in the law laid down to indicate that it is not), it may be potentially misused to disturb the line of seniority, which determines who will assume the office of the Chief Justice of India. If multiple names are recommended and the senior recommendees are ‘returned’ to the collegium but the junior recommendees are appointed, the latter become senior to the former, which is not at all conducive. Though the collegium is entitled to reiterate its recommendation, but as seen in the past, there is no mechanism in place to account for the delay in appointments even after the recommendations are made by the collegium.

I personally feel that in the present case, it would be an oversimplification of the matter to suggest that a stand be taken and no appointment be made in view of such dissection/ segregation. It may ensure independence of judiciary and send a strong message, but it would come at a heavy price,with six judges of the Supreme Court set to retire this year. In such a situation, the collegium should revert as expeditiously as possible, reiterating the recommendation, as Justice Joseph is one of the outstanding judges deserving elevation to the Supreme Court.

The reasons given by the Centre for Justice KM Joseph’s non-appointment pertain to his seniority (or lack thereof) and adequate representation of his parent (Kerala) High Court. In my personal view, these cannot be strong or cogent reasons to return his recommendation because the Fourth Judges case clearly lays down that “there cannot be any doubt that consideration of Judges on the basis of their seniority, by treating the same as a primary consideration, would adversely affect the present convention of ensuring representation from as many State High Courts as is possible. The convention in vogue is to maintain regional representation.” At present, there is only one other judge (Justice Kurian Joseph) whose parent High Court is Kerala High Court. However, there are at least two or more judges from the following (parent) High Courts: Andhra Pradesh ( two), Bombay (three), Delhi (three), Karnataka (two) and Madhya Pradesh (two).

Therefore, it may not be appropriate to single out Kerala High Court alone as having adequate representation.

Moreover, the defiant attitude of the executive is evident even as regards appointment of judges to High Courts. For instance, despite the collegium’s recommendation for appointing a judge to the Karnataka High Court after having given the recommendee a clean chit, the Chief Justice of the High Court concerned initiated an inquiry against him at the Centre’s behest. In another instance, the Centre extended the tenure of an additional judge by only six months despite the collegium’s recommendation for making him a permanent judge.

The executive should appreciate that after the Second, Third and Fourth Judges cases, the judiciary is the supreme authority in matters of appointment of judges, and it is not conducive to try and dilute the primacy of the collegium. In my view, the collegium should be guarded and very assertive of its recommendations. The government, as a major litigant, cannot paralyse the process of appointment of judges, knowing that it plays a limited role.

The Fourth Judges case recognised the need for improving the collegium system, but nothing substantial has really happened since then. The fate of the new Memorandum of Procedure (MoP) for appointment of judges is unknown. The need of the hour is for the judiciary to assert itself in the matter of appointments to ensure a fair and impartial justice delivery system, and for the judiciary and the executive to work in tandem and arrive at a revised MoP to ensure the independence of the judiciary.

Mohan Parasaran is a senior advocate and former Solicitor General of India

The views expressed are personal