Govt’s Objections to Justice Joseph’s SC Appointment are Baseless

Rebutting the ‘objections’ mentioned by the Law Ministry to the appointment of Justice KM Joseph to the SC.

(On 2 May 2018, the Supreme Court Collegium deferred its decision on whether or not to reiterate Justice KM Joseph’s name for elevation to the apex court. This follows the the law ministry’s request dated 26 April to reconsider his recommendation. In light of this development, The Quint is republishing this article which was originally published on 28 April.)

Friday, 27 April 2018, should have been a good day for the judiciary, and for Indian institutions as a whole. It should have been a day to celebrate Indu Malhotra’s swearing-in as a judge of the Supreme Court – and to pledge that this would be just the first of many appointments that would end the skewed representation in the highest court of the land.

Justice Indu Malhotra (as she now is), is a widely respected lawyer, and her appointment has been hailed across the board. She is now the first woman judge to be elevated directly from the Bar. In a parallel universe somewhere, we’re all focusing on this landmark move instead of being consumed by concerns for the independence of the judiciary – which is able to use its strong cooperation with the government to actually work on improving the justice system, filling all vacancies and ensuring diversity among its members.

Unfortunately, in our universe, the government has no interest in cooperating with the judiciary; and its favourite parlour trick is to find new ways to frustrate the appointments and transfers of judges requested by the Supreme Court collegium. Their dedication to this cause is admirable – even Justice Malhotra’s appointment, which was great from both a qualitative and optics point of view, has only been approved more than three months after the collegium recommended her name.

But of course, accepting a great recommendation after sitting on it for months for no discernible reason wasn’t good enough for this government. After all, the collegium had recommended another name to them as well – that of Justice KM Joseph (current Chief Justice of the Uttarakhand High Court).

So of course, the Union Ministry of Law and Justice did what any reasonable government department would do in the circumstances, and wrote back to CJI Misra asking him to reconsider the recommendation of Justice Joseph.

Perhaps, the only lucky thing about all the current crises in the judiciary is that this decision didn’t just disappear under a mountainous pile of files. We actually got to see this letter. And you guessed it, the objections raised to Justice Joseph’s appointment are so ridiculous, you could make a Salman Khan movie plot out of them.

Why Is the Letter's Argument for Seniority Flawed?

The letter notes that:

“In the All India High Court judges seniority list, Justice KM Joseph is placed at serial no. 42. There are presently eleven Chief Justices of various High Courts who are senior to him”.

So according to this letter, if there are other judges who are senior to you, this makes your candidature less strong. They try to later clarify that seniority in itself isn’t a problem, but is tied in with the other objections they’ve raised in the letter. This is still an extremely disingenuous argument to make, especially since when trying to justify bringing this up, the Law Ministry claims it is only being true to what’s been said by the Supreme Court itself, in the landmark Second and Third Judges Cases.

They have quoted para 28 of the Third Judges Case judgment to say:

“All that was intended to be conveyed was that it was very natural that senior High Court judges should entertain hopes of elevation to the Supreme Court and that the Chief Justice of India and the collegium should bear this in mind.”

If only whoever had written the letter had actually read the Third Judges Case, they’d know that this isn’t even a sentence which supports them, as it’s a clarification that there’s no disparagement meant when saying senior judges would expect to eventually earn an appointment to the Supreme Court. The sentence is not meant to lay down any rule that seniority is to be followed when appointing Supreme Court judges.

If the writer of the letter had actually read the judgment, and indeed the very paragraph they’ve looked to quote, they’d have also seen that it says:

“Where, therefore, there is outstanding merit the possessor thereof deserves to be appointed regardless of the fact that he may not stand high in the all India seniority list or in his own High Court. All that then needs to be recorded when recommending him for appointment is that he has outstanding merit.”

Indeed, the collegium, made up of the five senior-most judges of the apex court, had obviously read this paragraph, because they made sure that their recommendation dated 19 January noted that Justice Joseph is not the senior-most High Court judge around, but that he is nevertheless:

“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.”

As a result, the question of seniority is entirely irrelevant in his case. It’s been pointed out elsewhere that there are a number of other judges who’ve been cleared for appointment to the Supreme Court by this government, despite there being many more judges more senior to them at the time in the running. Justices Deepak Gupta and Naveen Sinha (appointed on 17 February 2017) are particularly appropriate comparisons since they also had around 40 High Court judges senior to them at the time.

But in truth, this argument is irrelevant, and even making it sends us down the garden path of whataboutery, which doesn’t actually win any arguments. At the end of the day, the seniority argument is a canard and doesn’t deserve engagement, according to the very judgment the Law Ministry tries to piously quote at us.

Sure, not everyone will go back and check the Third Judges Case judgment to note the discrepancy, but the Collegium judges surely will (one hopes), and simple access to internet can help anyone from the public see this as well – it can be accessed here.

Why the "Need for Representation" from Other Regions Argument Doesn't Hold

The next masterstroke from the Law Ministry is that a number of High Courts are not represented at the Supreme Court, namely those of Calcutta, Chhattisgarh, Gujarat, Rajasthan, Jharkhand, Jammu & Kashmir, Uttarakhand, Sikkim, Manipur, and Meghalaya.

When making this argument, they again rely on the Second and Third Judges Cases. Again, it’s very clear that they haven’t bothered reading the cases. The same paragraph in the Third Judges Case as quoted above, has this to say about the relevance of regional representation:

“When the contenders for appointment to the Supreme Court do not possess such outstanding merit but have, nevertheless, the required merit in more or less equal degree, there may be reason to recommend on among them because, for example, the particular region of the country in which his parent High Court is situated is not represented on the Supreme Court bench.”

What this means is that the first part of the Ministry’s objection (that other High Courts should be represented) falls flat since this shouldn’t even be at play when the collegium feels that a particular judge is extremely deserving on merit.

And of course, even if the Law Ministry is entirely sincere about its concern for these under-represented High Courts (Hint: it’s not, given how they’ve blocked the appointment of judges to those courts despite the collegium sending names, even causing strikes in some of them), there are more than enough vacancies at the Supreme Court to go around.

The total sanctioned strength of the Supreme Court is 31; the current strength after Justice Malhotra’s appointment is 25. That means that there are six current vacancies at the court. Another six judges of the Supreme Court will retire by the end of 2018.

Even if Justice Joseph were to be appointed, that would leave 11 vacancies which could be filled by judges of the 10 High Courts that the Law Ministry feels are short-changed.

Surely, the Law Ministry is aware of these numbers? If not, they’re welcome to use my calculations here (carried out with difficulty), to realise that appointing Justice Joseph will not preclude them from being the nice, diversity-conscious people they totally are, and giving those poor High Courts a voice.

"There Are Enough Kerala HC Judges in Senior Positions". So?

According to the Law Ministry’s letter, it would be inappropriate to elevate Justice KM Joseph to the Supreme Court since there is already another judge from Kerala at the Supreme Court – Justice Kurian Joseph.

According to the letter, the sanctioned strength of the Kerala High Court is 47 judges, which is “comparatively small”. Apart from one Supreme Court judge, there are also three other judges from the Kerala High Court who hold the position of High Court Chief Justice – Justice KM Joseph (Uttarakhand), Justice Radhakrishnan (Chattisgarh) and Justice Dominic (Kerala).

In light of its size, therefore, the Law Ministry feels that:

• The Kerala High Court “has received adequate representation”.
• The elevation of Justice KM Joseph “does not appear to be justified as it does not address the legitimate claims of the Chief Justices and Puisne Judges of many other High Courts and forestalls the claim of other senior Chief Justices and Puisne Judges”.

To support this cogently-written submission, they’ve relied on – you guessed it – the Second and Third Judges Cases. And true to form, they’ve once again betrayed a complete ignorance of what those cases actually say.

You see, the size of a judge’s parent High Court is not mentioned anywhere in these cases, let alone as a criterion for deciding whether they should be appointed to the roster of Supreme Court judges. Even if the Kerala High Court was the smallest in the country, therefore, this would have no bearing on whether or not to appoint Justice KM Joseph.

Besides, even if this were a relevant criterion, it would really not apply to this situation.

The strength of the Kerala High Court is 47 judges (27 permanent + 20 additional). For them to have two judges at the Supreme Court hardly seems disproportionate – at any rate, these arguments were not raised when three Supreme Court judges were appointed from the Delhi High Court (29 permanent judges + 19 additional judges).

Justice Kurian Joseph is set to retire from the Supreme Court on 29 November 2018. So in what way would there be a disproportionate representation for the Kerala High Court?

At the end of the day, as the Supreme Court has said in the Third Judges Case: “Merit, therefore, as we have already noted, is the predominant consideration for the purposes of appointment to the Supreme Court.”

If the Law Ministry has some mathematical formula to decide when a High Court is over-represented or not, perhaps they should share this with the collegium, and frame a law on this, maybe. However, this objection also fails to pass muster since such a formula is not currently part of the law, and the latter isn’t possible – remember NJAC?

Why the Lack of SC/ST Judges Has Nothing to Do with Refusal to Elevate KM Joseph

To be clear, yes, the courts do have a problem with a lack of judges from the Scheduled Castes or Scheduled Tribes. There has been no Dalit judge at the Supreme Court since 2010, when former Chief Justice of India KG Balakrishnan retired. Much as with the question of gender representation, this needs to be addressed by the collegium with some urgency.

However, that does not provide the government with a reason to object to the elevation of a judge, especially with the number of vacancies that need to be filled this year (see the assessment of Objection 2).

A recommendation to ensure adequate representation from Scheduled Castes and Tribes can easily be passed on for any of the other eleven vacancies that will need to be filled shortly.

A Threat to the Judiciary That Must be Addressed

So if there are no legal or logical reasons to object to Justice KM Joseph’s appointment, why has the Law Ministry objected to it?

Could it perhaps have something to do with the fact that Justice Joseph passed a judgment in 2016 in which he quashed the order of the Centre that imposed President’s Rule in Uttarakhand? That certainly appears to be the prevailing view among the legal community and many political commentators. Even Justice AP Shah (former Chief Justice of the Delhi High Court) thinks this is the reason. He told the The Indian Express:

“Clearly the reason (Justice Joseph’s file was rejected) is his judgment against the Centre in 2016”.

However, even if one weren’t to subscribe to that view, the letter from the Law Ministry doesn’t disclose any good reasons for not accepting the collegium’s recommendation. Even if the government isn’t engaging in vendetta against Justice KM Joseph, it is entirely inappropriate for this to be the way in which they respond, especially after sitting on their hands for three months.

As a result, even if there is no malice at play here, this is a threat by way of negligence to the independence and the functioning of the judiciary, since it involves unreasonable interference with the decisions of the collegium, and has a detrimental effect on the efficient operation of the courts.

Let it not be forgotten that the government doesn’t have the power to reject a recommendation; they can only ask the collegium to reconsider. If the collegium reiterate the recommendation, the government is bound to accept it.

Of course, since the Memorandum of Procedure on this point doesn’t specify a timeframe within which they have to respond, they could just fail to respond for as long as they want.

In such circumstances, it is imperative that the CJI demonstrate leadership and resolve, by objecting to the inappropriate behavior of the Law Ministry and reiterating Justice KM Joseph’s name. Given that the Ministry segregated the names recommended (which goes against all convention according to former CJI RS Lodha), it may even have been appropriate to swear in Justice Malhotra only after Justice Joseph’s name was accepted.

CJI Dipak Misra declined to take this option up, expressing incredulity at the suggestion. The CJI had already attracted criticism for his failure to follow up on the recommendations in the last three months, and the current situation will not help his cause, embattled as he is with the attempt to impeach him and letters from the other members of the collegium urging action.

It’s all quite disappointing, but there is still time for the CJI to do what’s necessary to properly address this.

• The first step must be to call a meeting of the full court to discuss this situation, and to pass any relevant orders as may be required.
• The next step, and one which must be taken regardless of the decision of the full court, must be to reiterate Justice Joseph’s recommendation to the government.
• The third must be to ensure that this reiteration is followed up on, with any relevant orders from the court, to ensure that the government doesn’t just pretend it can ignore the recommendation.

If this doesn’t happen, it will truly mean that the Indian judiciary no longer enjoys its independence and its legally-mandated position, and that it cannot protect itself from the depredations of this (or for that matter, any) government.

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