Government may clear 2 names for Supreme Court, sit on Justice KM Joseph’s file

The government is planning to clear the appointment of two high court chief justices, Indira Banerjee and Vineet Sharan, to the Supreme Court in the coming week, but not that of Justice KM Joseph , a top government functionary said on Wednesday on condition of anonymity. The SC collegium recommended the two new names and sent its recommendation again on Joseph to the law ministry on July 16.

A second government functionary, while confirming the development, said the law ministry had moved the file of the two judges to the Prime Minister’s Office for final clearance. While Justice Banerjee heads the Madras HC, Justice Sharan is the CJ of the Orissa HC. Law minister Ravi Shankar Prasad declined to comment.

The collegium, a body of the SC’s top five judges headed by the Chief Justice of India that appoints judges to the higher judiciary, first recommended justice Joseph’s elevation to the top court (he is currently chief justice of the Uttarakhand high court ) in January. In April, law minister Prasad wrote to chief justice of India Dipak Misra asking for reconsideration of the decision (communicated in January) to appoint Justice Joseph. The law minister said Justice Joseph was at No. 42 in the all India seniority list of HC judges and there was already a judge from his parent HC (Kerala) in the SC. “It would also not be fair and justified to other more senior, suitable and deserving Chief Justices and senior judges of various high courts if Joseph’s name goes through,” Prasad said at that time.

The SC and the government have been sparring over appointments ever since the apex court struck down the National Judicial Appointments Commission (NJAC) bill in 2015 that said all appointments to the higher judiciary would be made by the NJAC.

The government had passed the bill in 2014. Subsequently, the two sides decided to agree to a Memorandum of Procedure or MoP on judicial appointments that would address gaps in the collegium system. Not much has progressed on this front.

On July 16, the collegium rejected the minister’s contention and reiterated its January decision.

“We have carefully considered the observations made by the Law Minister in his letters dated 26th April, 2018 and 30th April, 2018 addressed to the Chief Justice of India referring back, for reconsideration, the recommendation made by us on 10th January, 2018 for appointment of Mr. Justice K.M. Joseph, Chief Justice of Uttarakhand High Court, as Judge of the Supreme Court,” the five-judge body wrote to the law ministry.

The collegium said the reiteration was being made since the two letters pointed out “nothing adverse” regarding Justice Joseph’s suitability for the SC.

The government’s plan is to delay Justice Joseph’s appointment to the SC. After studying the so-called Three Judges Cases – three of the Supreme Court’s own judgements on appointments, laying down guidelines for appointments to the higher judiciary – the ministry has concluded the file cannot be referred back to the collegium and the appointment is inevitable, the first functionary said.

With no timeline stipulated for making the appointment, the government is in no hurry to clear his file, this person added.

The government came under flak in the Lok Sabha on Wednesday for sending back justice Joseph’s name to the collegium. Congress leader in the House, Mallikarjun Kharge, charged the government with playing favourites. “Once the name has been reiterated, the file is still lying with them. Whomsoever you like, you support. Whoever you don’t like, you oppose,” he said.

“Is it a sin if two judges in the SC speak the same mother tongue or belong to the same state,” Communist Party of India (Marxist) lawmaker A Sampath asked while the House was discussing an amendment bill on commercial courts.

Prasad defended the government’s decision, saying it is was his duty to express his concern “if while making an appointment to the Supreme Court, a high court is being ignored”.