Hours after it was reported that the Centre has cleared senior advocate Indu Malhotra’s name for appointment as a judge of the Supreme Court but held back the elevation of Uttarakhand High Court Chief Justice KM Joseph, lawyers and the Opposition Congress criticised the government.
Former Attorney General Soli Sorabjee said it was unconstitutional of the government to hold back Joseph’s promotion. In an interview to ThePrint, he explained that the Centre has a voice and not a veto to stall an appointment.
“The government only has a voice, not a veto as far as appointments of judges are concerned,” Sorabjee told the website. “But if the collegium, after considering the point of view of the government, still wants to maintain that a certain judge should be elevated, then it is binding on the government.”
He urged Chief Justice Dipak Misra to go ahead with the appointment and the government to approve it, failing which it would face legal action because of the unconstitutional nature of the act.
‘Judiciary, democracy’s last refuge, under attack’
Congress communications chief Randeep Surjewala claimed the appointment of only Malhotra had exposed Prime Minister Narendra Modi’s “revenge politics” and the “conspiratorial suffocation” of the Supreme Court. “Judge Joseph is India’s senior-most chief justice,” he said. “Yet the Modi government refuses to clear his elevation to the Supreme Court as retribution for quashing presidential rule in Uttarakhand?”
Surjewala claimed Modi had “shredded” the “privileges and supremacy of the Parliament”, and “road-rolled” independent media. “Democracy’s last refuge, that is, judiciary, is now under most vicious attack ever,” he said. “If the nation does not rise in unison now, totalitarianism will stump democracy.”
Justice KM Joseph had headed the three-judge Uttarakhand High Court bench that had quashed the Centre’s decision to impose President’s Rule in the state in 2016. Several reports have linked that decision to the government blocking his transfer to Andhra Pradesh and his elevation to the Supreme Court.
Senior Congress leader and former Finance Minister P Chidambaram said the Supreme Court Collegium’s recommendations are binding on the government. “Is the Modi government above the law?” he said. “What is holding up Justice Joseph’s appointment? His state or his religion or his judgement in the Uttarakhand case?”
The Communist Party of India (Marxist) also objected to the Centre’s move. “This is an unwarranted intrusion into the selection process of a judge and will affect the independence of the judiciary”, PTI reported a CPI(M) statement as saying. The Left party demanded that the President intervene “to ensure that the laid-out procedure is followed and the appointment of Justice Joseph is cleared.”
In January, the collegium of five senior-most judges had recommended the elevation of Malhotra and Joseph to the post of Supreme Court judges. The law ministry reportedly wanted to approve Malhotra’s appointment but not Joseph’s, citing “breach of seniority”, and so sent the recommendations back to Misra without forwarding them to President Ram Nath Kovind. However, if the Collegium reiterates Joseph’s name for appointment, the government will have no option but to issue a warrant sanctioning it.
In March, PTI had reported that the ministry had not yet approved even Malhotra’s appointment as experts had advised it against making different decisions on two names that the collegium recommended simultaneously.
Senior advocate Indira Jaising on Thursday urged Chief Justice of India Dipak Misra not to swear-in Malhotra until the government also cleared Joseph’s name for appointment. Asking Misra to protect the independence of the judiciary, Jaising also said that Malhotra’s swearing-in would be illegal as the Supreme Court Collegium had not decided to appoint her alone.
Supreme Court Bar Assocation President Vikas Singh said Indu Malhotra was “a fine lawyer” and would make a “great judge”, ANI reported. But, he added, “I have huge reservation at the attitude of the government, there is no way by which they should not have cleared Justice KM Joseph’s name.” “By making one appointment and not making another, the govt has interfered in functioning of the judiciary,” Singh said. “This is a very serious matter and should be taken up with the government very strongly.”
If sworn-in, Malhotra would be the first woman lawyer to be directly elevated to the Supreme Court.