The Supreme Court collegium should have had a one-point agenda: KM Joseph’s elevation

In a surprising decision, the Supreme Court collegium, consisting of five senior-most judges of the Supreme Court, including Chief Justice of India Dipak Misra, deferred the decision to reiterate the elevation of Uttarakhand Chief Justice KM Joseph to the Supreme Court.

The short resolution published on the Supreme Court website did not assign any reason for why the decision was deferred.

However, what was surprising was that the agenda for the Wednesday meeting that lasted 45 minutes did not consist only of the matter of reiterating Joseph’s elevation. It also considered the names of judges from Calcutta, Rajasthan, and Telangana and Andhra Pradesh High Courts for elevation as Judges of the Supreme Court. The collegium further said this was being done “in view of the concept of fair representation”.

In April, the Centre refused to accept the decision of the collegium to elevate Joseph to the Supreme Court. One of the reasons cited was that his parent High Court of Kerala already had a representation in Justice Kurian Joseph and a second judge was not necessary given the small size of the Kerala High Court. The Centre, through a letter sent to the chief justice by Union Law Minister Ravi Shankar Prasad, said many High Courts did not have any representation in the Supreme Court.

That the agenda for the collegium meeting considered this problem of representation is significant.

However, the larger question that arises is whether the collegium should have clubbed the decision of reiterating Joseph’s elevation with recommending new names from the mentioned High Courts for appointment to the Supreme Court.

This is because clubbing these two in a single resolution could given the Centre the option of perpetually sitting on Joseph’s appointment while asking the President to issue warrants to others who are recommended by the collegium. While a unanimous decision by the collegium to reiterate a recommendation is binding on the Centre, it nevertheless is not bound by any time limit to advise the President to issue the warrant of appointment. One good way to force the hands of the Centre would be to ensure that no other names are recommended before Joseph’s appointment is done.

If at all there was a point of dispute, the decision to club the reiteration with recommending new names could have been one, though there is no confirmation as yet on why the decision to defer the matter was taken. All five judges, including Jasti Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph, attended the meeting and have signed the resolution.

In April, the Centre split a January recommendation of the collegium and appointed Justice Indu Malhotra alone as a judge. The splitting to deny Joseph’s elevation was a deviation from a long-held convention that collegium’s recommendations should be treated as a whole and not as units. Indu Malhotra was sworn in last week.

Many former chief justices, including RM Lodha and TS Thakur, have openly said that the decision of the Centre was wrong and that the collegium should reiterate its decision to elevate Joseph in the interest of the independence of judiciary.