Let me begin by taking the government head on by asking: Why has the Chief Justice of Uttarakhand High Court KM Joseph been rejected as Supreme Court Judge? Why have the recommendations of the collegium of the Supreme Court been disregarded even as senior advocate Indu Malhotra has been cleared for being appointed a Supreme Court Judge? Why the impeccable credentials of Justice KM Joseph been blatantly overlooked?
Why specious reasons were listed for rejecting him even though he met all the parameters for becoming a Supreme Court Judge? Why is great emphasis laid now that with Justice KM Joseph being appointed to the Supreme Court, Kerala may be overrepresented as Justice Kurian Joseph is already in the Apex Court and who is due to retire by November 2018 but on the contrary, in the past this very government had approved the appointment of Justice Sanjay Kishan Kaul as Supreme Court Judge even though two other Judges Justice Madan B Lokur and Justice AK Sikri were from Delhi? Why is Justice KM Joseph impeccable track record given no weightage at all?
Why in rejecting his name the Centre cites lack of representation from among the Scheduled Castes and Scheduled Tribes but when it comes to selecting other candidates of its choice it wastes no time in selecting them straightaway as we saw when Judges from Delhi were appointed inspite of some Judges already from Delhi being in Supreme Court? Why is merit kicked out and irrelevant considerations like place, caste etc given more importance in rejecting some exceptionally capable and talented Judges like KM Joseph?
To be sure, Avtar Singh Raawat who was the Additional Advocate General for Uttarakhand in the Supreme Court from 2002 to 2007 minced no words in reiterating his unstinted support for Justice KM Joseph when he said categorically that, “I am yet to see a jurist as learned and as humble as Justice Joseph. If a jurist of his caliber is not being elevated to the Supreme Court, then I don’t know who should be”. Uttarakhand Advocate General SN Babulkar, who is currently the officiating Chairman of the Bar Council of Uttarakhand too backed him fully saying that, “He (Justice Joseph) deserves to be elevated as a Supreme Court Judge. He lacks no credentials.” The snowballing controversy over Justice KM Joseph not being considered by the Government inspite of Supreme Court collegium clearing his name refuses to die anytime soon and is most baffling.
It may be recalled here that Justice KM Joseph as a member of the Division Bench of the Uttarakhand High Court had on April 21, 2016 quashed the order that had put the state of Uttarakhand under President’s rule. The Division Bench then of which Justice KM Joseph too was a part had categorically said that, “The Centre was introducing chaos. By taking back the power of a government, which the people of the State had voted for, the Centre had cut into the root of democracy.” Many former Judges say on condition of anonymity that he is being made to pay the price for being upfront in rendering judgment on this.
Strictly speaking, a senior advocate of Uttarakhand High Court said on condition of anonymity that, “As far as giving judgments is concerned, he (Justice Joseph) takes his time. He hears out every aspect of a case, and gives a judgment only when he’s convinced that the hearings have dealt with all aspects pertaining to a case.” Another senior advocate Avtar Singh Rawat said that, “He (Justice Joseph) has remained fairly apolitical in his years as the Chief Justice of the Uttarakhand High Court. He has never met any chief minister of the state. He has never even attended their functions.” This itself is the biggest testimony to prove that Justice KM Joseph always remained committed to delivering judgments in time and never associated himself with any particular political party!
Truth be told, while former CJI TS Thakur told the media that the decision to segregate Justice KM Joseph and senior advocate Indu Malhotra was unfortunate. Going one step ahead, former CJI RM Lodha pulled back no punches in saying categorically that “The segregation strikes at the very heart of the independence of the judiciary”. He explained that by sitting over a file for weeks and then picking just one out of the two recommendations, Centre brings into play a “whole new succession”.
Chiming in, former Attorney General Soli J Sorabjee also opined that the collegium should look into the reasons accorded by the Centre for sitting on the proposal and subsequently rejecting without going into the reasons for such rejection. While speaking to National Herald, Sorabjee said that, “The government has not rejected it; they said they have some misgivings about it including seniority; none of which are valid. The government should not have sat on the proposal for so long, since January. That is wrong.” He then asserted that it is on the collegiums to accept the reasons or reject them. Commenting on the aspects that should be considered relevant by the collegiums, he was quoted as saying, “The most important things to be considered are integrity and merit, all other considerations are immaterial. Seniority is an irrelevant factor. The basic point is that it is not for the government to decide. We do not want ‘sarkaari’ judges, we want judges who are independent aand capable. The people who are the best to decide that is the collegium.”
Senior advocate Arvind Datar told BloombergQuint that the collegiums ought to have refused to swear-in Ms Indu Malhotra till both the recommendations were approved by the Government. He, in fact, opined that the Centre’s move is “a complete breach of constitutional convention”, explaining, “In the case of Justice Joseph, these comments were made saying that he’s not senior and so on. Despite that, the collegium has said they consider him the most fit person, even though he may not be the senior-most person. Once the collegium has passed or made its comments known, there is no reason or justification for the government to still not appoint Justice Joseph. I think it’s a complete breach of constitutional convention and I don’t think it’s a proper action at all.”
Needless to say, it is still not too late. Centre must at least now reconsider its ill thought out recommendation of not accepting Justice KM Joseph as a Judge of the Supreme Court which the collegium of the Apex Court had proposed on January 10 along with senior advocate Indu Malhotra. Only then can the damage be saved from turning into an irreversible one! The collegium of the Apex Court too this time should not buckle under pressure as it did most unfortunately when Gopal Subramanium’s name was not accepted which had miffed the then CJI RM Lodha who wrote then to the Law Ministry expressing his strong disapproval with the Centre’s stand taken then and urged him that this does not happen again in the future! Only then can the independence of the judiciary be saved from crumbling in front of the government which will certainly have catastrophic consequences for the nation and which cannot be allowed to happen under any circumstances at all! Judiciary is the last bastion of hope for a common man and if this too crumbles then democracy itself will also collapse for which we all will be responsible!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.