Mixed reactions over delay in Justice K M Joseph's elevation to Supreme Court

The elevation of one of the two jurists recommended by the collegium as Supreme Court judges, today evoked sharp reaction with the apex court's bar association chief terming as "disturbing" the government's action of accepting only one name and asking it to reconsider the name of Justice K M Joseph.

Activist lawyer Prashant Bhushan shared the views of senior advocate Vikas Singh, the Supreme Court Bar Association President, even as BJP leader Subramanian Swamy, a regular petitioner in the apex court, said the Congress' stand on the issue reflected its frustration.

Swamy's comment assumes significance as the Congress leadership including P Chidambaram, himself a senior advocate, were critical of the Centre's decision and tweeted that the recommendation of the collegium was final and binding in the appointment of judges.

"Is the Modi government above the law," Chidambaram tweeted. "What is holding up Justice K M Joseph's appointment? His state, or his religion or his judgement in the Uttarakhand case?" Dealing a major blow to Modi government, a bench headed by Uttarakhand High Court Chief Justice K M Joseph in 2016 had quashed the imposition of President rule in the state and had revived the Congress government headed by Harish Rawat. Later, the Congress lost the Assembly election.

The reactions of Chidambaram and others came amidst reports that the government had cleared the appointment of senior advocate Indu Malhotra as a judge of the Supreme Court, but not that of Justice Joseph.

Malhotra will be the first woman judge to be appointed to the top post directly from the bar.

Meanwhile, the law ministry sources said the government has asked the collegium to reconsider the recommendation to elevate Justice Joseph as a judge of the top court.

SCBA president Vikas Singh, speaking in his individual capacity, expressed concern over the delay in the appointment of Justice Joseph and said "this kind of interference by the executive is definitely uncalled for".

"This elevation is very wrong as it disturbs the seniority in the Supreme Court. We have seen in recent past how important seniority is in the apex court. Judges are being labelled as junior judges and said that they were not fit to hear sensitive matters. So tomorrow if somebody says Justice Joseph is a junior judge and not fit to hear a particular matter, it will be very sad.

"Government will be responsible. This kind of interference by the executive is definitely uncalled for. By delaying this, they have definitely interfered in seniority rules and in that sense they have interfered in the functioning of judiciary. A very serious matter. The civil society and the judges of the Supreme Court in full court should discuss and take it up with the government," Singh told PTI.

BJP leader Subramanian Swamy said, on the issue of delay in Justice Joseph's appointment, that the Congress party is just frustrated.
"On one hand, they accuse the CJI being inclined to BJP and on the other, they are saying we have ignored him. The Congress party is just frustrated," he said.

Bhushan was vocal in criticising the Centre and alleged that the government was trying to erode and destroy the independence of judiciary by not appointing those recommended by the collegium.

"Justice K M Joseph's instance is a very clear one, whose name has been stalled, which was recommended by the collegium four months ago. The name was unanimously recommended by the collegium and yet it has been stalled by the government because he gave a judgment in Uttarakhand case against the government.

"It is very shameful and shocking for a government which talks about the independence of judiciary to try and erode the independence of judiciary by sitting on appointment of people that it doesn't like," Bhushan said.

On January 22, the apex court collegium's file recommending the elevation of Justice Joseph and Malhotra reached the Law Ministry.

After processing the file in the first week of February, the recommendations were kept in abeyance as the government wanted to elevate only Malhotra. But now, the government has gone ahead with the appointment of Malhotra and asked the collegium to reconsider the elevation of Justice Joseph.

The government feels that while recommending the name of Justice Joseph, the collegium has disregarded seniority and regional representation. He is 42nd in the seniority list of 669 high court judges.