Collegium Recommendations Of Justice KM Joseph And Indu Malhotra: A Litmus Test On Independence Of Judiciary

It is reliably learnt that the senior judges of the Supreme Court collegium- Justice Chelameswar, Justice Ranjan Gogoi, Justice Madan.B.Lokur and Justice Kurian Joseph- are seriously aggrieved with the inaction of Central Government in acting upon Collegium recommendations. Sources revealed to Live Law that the senior judges had taken up the issue with the Chief Justice of India Dipak Misra and are unhappy at the failure of CJI in being firm with the Central Government.   The manner in which the Government has been sleeping over collegium recommendations, and also dilly-dallying with the Memorandum of Procedure(MoP) for appointment of judges has been a cause of concern for the judges.             It is reliably understood that these issues were discussed by the four judges with the CJI, and the differences regarding resolution of the same acted as an additional impetus for the press conference held by them on the 12 of January, among other reasons pertaining to roster fixation.

Memorandum of Procedure- The bone of contention.

Ever since the striking down of Constitutional amendment introducing NJAC, things have not been very smoothbetween the centre and the Collegium regarding judicial appointments. The major bone of contention is the finalization of Memorandum of Procedure (MoP).

In December 2015, the Constitution Bench of Supreme Court directed the Central Government to finalize the MoP in consultation with the CJI, taking into account the revised guidelines proposed by SC.  In view of the stand-off between Government and Collegium regarding the finalization of MoP, judicial appointments were getting delayed. The Centre dragged its feet in acting upon the recommendations of collegiums regarding appointment and transfer of judges. Therefore, in 2016, many of the High Courts witnessed high percentage of judicial vacancies.

Later, the Centre formulated a draft MoP, which included a contentious clause enabling the Centre to reject a candidate on the ground of ‘national security’. The draft MoP by Centre suggested that Attorney General and the Advocate Generals of the respective states should have a say in the matter of selection. Involvement of retired judges in selection process was too suggested. However, the Collegium rejected the recommendations in the draft MoP formulated by the Central Government.

In wake of the stalemate, Collegium recommendations got stuck at the Ministry without further movement. For example, the Collegium had recommended the transfer of Justice K.M Joseph, the present Chief Justice of Uttarakhand High Court, to Andhra Pradesh High Court, reportedly on health reasons. However, the matter was kept pending by the Central Government

Centre’s delay in processing Collegium recommendations caused much anguish to the then CJI T.S Thakur.  A Bench headed by the CJI did not mince its words in expressing its unhappiness over the ‘logjam’ in appointment of judges.  “The collegium has cleared 75 names of high court judges (for transfer/appointment) but they have not been approved. I don't know why, where these files are stuck”, a much disturbed CJI asked the then Attorney General Mukul Rohatgi. While speaking at a public function in which PM Narendra Modi was also attending, CJI Thakur made an emotional appeal to the Centre to promptly act upon judicial appointments, and broke down to tears during his speech criticising the Centre’s apathy in filling up vacancies.

Justice J.S Khehar, after he became CJI following Justice Thakur, did not refrain from expressing dissatisfaction at the manner in which Centre was delaying appointments.   As CJI, he was prepared to consider the issue on the judicial side by adjudicating the PILs seeking expeditious filling up of judicial vacancies. The then Attorney General Mukul Rohatgi objected the consideration of PILs stating that it was a matter to be dealt with by the administrative side of the judiciary and not its judicial side“We cannot run away from our own cause when they (citizens) are projecting the cause of the judiciary.”, the Bench observed, overruling the objections of AG.

During May 2017, the SC collegium led by the then CJI Khehar finalized the MoP, conceding to the Government’s demand that it should have the right to veto a candidate on ground of ‘national security’. The Supreme Court also gave up its objections to the Centre’s proposal for setting up secretariats for dealing with judicial appointments. Even though the MoP has been cleared by the SC Collegium, the Centre has not returned its word on it, and has kept it pending on the ground that its ‘studying’ the matter.  

The letter written by four senior judges to the CJI, which was released to the media on 12^th January, makes reference to the manner in which a Division Bench happened to deal with issue of Memorandum of Procedure (MoP). On 27^th October, a Division Bench comprising Justice  A.K Goel and Justice U.U Lalit sought for the response of the Government regarding the steps to finalize the Memorandum of Procedure for appointment of judges, in a petition filed by R.P Luthra.  The letter expressed - when the Memorandum of Procedure was the subject matter of a Constitution Bench of this Court in Supreme Court Advocates on Record Association v. Union of India (2016) 5 SCC 1, it is difficult to understand as to how any other bench could have dealt with the matter.

The petition filed by R.P. Luthra was subsequently posted before a three judges’ bench presided by the CJI, after advancing the posting initially given by the Division Bench. The Bench of the CJI dismissed the matter recalling the order passed by the Division Bench on 27^th October. The Bench observed that there was no need to proceed with the matter in view of the Constitution Bench decision.

Need to fix time limit for acting on collegiums recommendations.

The impasse highlights the need for fixing a time-limit for Centre to act upon collegiums recommendations. During December 2016, the Centre rejected almost half of the collegiums recommendations for HC judges, after sitting over the files for months.  Such mass rejections by the Central Government are quite unprecedented.  In 2014, the then CJI R.M Lodha had criticised the Government for dropping the name of Senior Advocate Gopal Subramanium from the list of collegium recommendations.  Justice Lodha stated that the name of Gopal Subramanium was segregated and dropped by the Government without consulting the Collegium.  But before the Collegium could reiterate the name of Gopal Subramanium, he withdrew his consent.

As per the dictum in the ‘Second Judges Case’, if the Collegium reiterates a recommendation despite the Government returning it, then the recommendation will be binding on the Government. In order to avoid this situation, the Government is sitting over those recommendations, which do not find favour with it, without making any explicit rejection. This too, the Government is doing selectively. While some recommendations of elevation and transfer are acted upon, others are put in cold storage indefinitely. As illustrated above, while the transfer of Justice K.M Joseph was kept pending, transfer recommendations of several other judges were acted upon. It may be noted that Justice Joseph had presided over the bench of Uttarakhand HC which quashed the presidential rule imposed by Centre dissolving Uttarakhand Assembly. Many in legal circles wonder whether Justice Joseph is ‘paying the price’ for rendering judgment against the Centre. The selective manner in which the Centre acts upon some recommendations ignoring others will have a chilling effect on the independence of judiciary, as it could be construed as a subtle signal to toe the line of the Executive.

The selective inaction shown by the Government has led to huge disappointment and unhappiness amongst the members of the collegium. Sources close to the Collegium reveal that the four judges made it clear to the CJI that the Government should be told in no uncertain terms to act in a time bound manner on the recommendations. While the previous CJIs like Justice Lodha, Justice Thakur and Justice Khehar have been very active in voicing concerns about delay in judicial appointments, the present CJI Justice Misra is not perceived to be that forthcoming in addressing the issue.   

Last December, the Government had tried to pass the buck to judiciary, when the Minister of State of Law & Justice, P.P Chaudhary in Lok Sabha stated in Lok Sabha that Government had not received any recommendations from SC for filling up of current judicial vacancies. In this backdrop, it needs to be anxiously watched as to how the Government will respond to the latest recommendations made by the Collegium. In the first week of January, the Collegium recommended the elevation of Justice K.M Joseph and Senior Advocate Indu Malhotra, and transfer of several other judges. Regarding their elevation, the Collegium made the following observation :-

"The Collegium considers that at present Mr. Justice K.M. Joseph, who hails from Kerala High Court and is currently functioning as Chief Justice of Uttarakhand High Court, is more deserving and suitable in all respects than other Chief Justices and senior puisne Judges of High Courts for being appointed as Judges of the Supreme Court of India"We have also considered the names of eminent members of the Bar. In our considered opinion, at present, Ms. Indu Malhotra, Senior Advocate, is eminently suitable for being appointed as a Judge in the Supreme Court
 There were unconfirmed reports that the recommendations were returned by the Central Government, which were subsequently refuted by the Government.The Government’s response to these recommendations will act as a litmus test for executive’s reverence to judicial independence.

 Published in Live Law on 04.02.2018