Can't Stay The Warrant Of A Constitutional Functionary: SC Refuses Urgent Hearing On A Plea Regarding Non-elevation Of Justice KM Joseph

In the wake of the elevation of Senior Counsel Indu Malhotra as a judge of the apex court while Uttarakhand High Court Chief Justice K. M. Joseph’s recommendation is returned to the Supreme Court collegium for reconsideration, Senior Counsel Indira Jaising mentioned before Chief Justice Dipak Misra at 2 PM on Thursday a petition on the legality of the dissection of the names recommendation by the collegium.

“we agree that Ms. Malhotra is an eminent member of the bar and we stand by her elevation...but we are concerned about the splitting up of the names...we know the warrant of appointment has been issued and she is scheduled to be sworn in tomorrow...we pray that the warrant be stayed and this petition be listed for hearing tomorrow...”, submitted Ms. Jaising.

“What is this prayer about the staying of the warrant? What kind of a writ petition is this?”, the CJI expressed his outrage. “You are praying for a stay in the warrant of a constitutional functionary”, remarked Justice D. Y. Chandrachud.

“It is about legality of the appointment. Our prayer is regarding the dissection of the names...”, Ms. Jaising sought to advance. “How do you know?...let us see what the communication (from the Centre) is...if we send back the name for reconsideration, there will be no controversy...let us see”, remarked Chief Justice Misra.

“If the name is sent back for reconsideration, then we have no grievance”, asserted Ms. Jaising.

When the bench noted that as per the judgment of a constitution bench of the Supreme Court [Second Judges Case (1993)], Centre is entitled to ask the collegium to reconsider its recommendation, Ms. Jaising responded, “precedents in the past show that both names should have been sent back for reconsideration...we are only concerned about saving the judiciary from the executive...it (the institution of judiciary) is safe in Your Lordships’ hands...”

At this point, Justice D. Y. Chandrachud sought to explain the prayer in the light of appointment of High Court judges- “In an event where 30 names are recommended for appointment to the High Court, can all of them be sent back?”

When Ms. Jaising persisted, the CJI exclaimed, “my learned brother has been the Chief Justice of the Allahabad High Court...he knows how many names come...if all 30 names are rejected, how will the High Courts function?”

“A CJ does his work to the best of his ability...we have to consider this from the High Court’s view point. Or will a different principle apply to them?”, remarked Justice Chandrachud. Ms. Jaising conceded that the same principle would apply.

“I see the difference that is being put to me and I agree with it...All we are saying is that Your Lordships’ permission should have been taken before the dissecting the recommendations”, she added. To this, the CJI replied that there is no judgement that so stipulates the position.

“The reconsideration shall be deliberated upon in the light of 1993 and 1998 (Second and Third Judges Cases respectively) and the NJAC judgment (2015)...but what you are praying is inconceivable and unimaginable...when you bring out a case like the Kathua rape and murder, we appreciate the concern and the agony at the bar...”, observed the Chief Justice.

Justice Chandrachud also noted on Thursday, “if the list goes from the High Court itself, a different situation may arise. In that case, if one name is kept aside, the inter se seniority of the remaining four judges is effected...here, one of the names is a member of the bar and does not affect the career prospects of the other name...”

Senior Counsel and Supreme Court Bar Association President Vikas Singh pointed out that if the appointment of one of the names is approved upon reiteration, the other name appointed priorly would become higher in seniority. “You raise a valid constitutional point”, remarked Justice Chandrachud.

Advocate Gopal Sankaranarayanan also advanced on Thursday, “there are several names that are recommended but are not sent back for the Collegium’s reconsideration...the government just sits on them...”

“We do not want an impression to prevail at the bar that a recommendation was rejected because they rendered a particular judgment...we all know that certain judgments of this court are palatable to the Executive...”, pressed Ms. Jaising.

“You file the petition...we can consider the wider issue...this petition may have a bearing on the judiciary”, agreed Justice Chandrachud.

In respect of the plea for the urgent listing of the petition, Chief Justice Misra remarked, “it is not a matter of demolition or deprivation of liberty...it shall come in due course...it is surprising that this petition is being mentioned at 2 PM by a Senior Counsel despite the practice having been restrained...a member of the bar is being elevated and you are praying that it be stayed...”

Finally, Ms. Jaising conceded, “we would not insist on the prayer that the appointment may not be effected...Your Lordships may hear the petition as to the rest of the prayer at any time as may be convenient...”