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

It is learnt that the four senior-most judges of the Supreme Court—Justice Chelameswar, Justice Ranjan Gogoi, Justice Madan.B.Lokur, and Justice Kurian Joseph—are seriously aggrieved by the Central Government’s inaction about the Collegium recommendations. Sources revealed to Live Law that these judges, being a part of the Collegium, had taken up the issue with the Chief Justice of India, Dipak Misra J., who has failed to be firm with the Central Government. At least, the four judges seem to believe so.

The way the Government has been sleeping over the collegium recommendations and also dilly-dallying with the Memorandum of Procedure (MoP) to appoint judges has been a cause of concern for the judges. It is reliably understood that the judge-quartet repeatedly raised the issue with the CJI, but to no avail. In fact, the differences between the CJI and the remaining four judges in the collegium believed to have acted as an additional impetus for the four to hold the press conference on the 12 of January. Perhaps, the other reasons such as roster fixation, too, may have hastened the show-down.

Memorandum of Procedure- The bone of contention.

Ever since the striking down of Constitutional amendment introducing NJAC, things have not been very smooth between the Centre and the Collegium, especially, about 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, after considering the revised guidelines proposed by SC.  Because of the stand-off between the Government and the Collegium about MoP finalization, judicial appointments have been getting delayed, undeniably. The Centre has dragged its feet on the Collegium recommendations regarding judges’ appointments and transfers. 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’, suspected to be a veto in disguise. The draft MoP by the Centre suggested that the Attorney General and the Advocate Generals of the respective states should have a say in the matter of selection. Retired judges’ involvement, too, was suggested. But the Collegium rejected the Central Government’s recommendations in the draft MoP.

In the wake of the stalemate, the 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 for health reasons. The Central Government, strangely, maintained a deafening silence on the matter. It kept the matter pending, still, too long.

Centre’s delay in processing the Collegium recommendations caused much anguish to the then CJI T.S Thakur.  A Bench headed by him did not mince words in expressing its unhappiness over the ‘logjam’ in appointing 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 act promptly on judicial appointments and, in fact, broke down in tears during his speech. Neither his criticism nor his crying, so to say, moved the Government.

Then came Justice J.S Khehar. He expressed dissatisfaction at how the Centre was delaying appointments.  As the 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 to the 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 AG’s objections.

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

The letter written by four senior judges to the CJI, released to the media on 12^th January, refers to how a Division Bench dealt with the issue of MoP. On 27^th October, a Division Bench comprising Justice A.K Goel and Justice U.U Lalit sought the Government’s response, in a petition filed by R.P. Luthra, regarding the steps being taken to finalize the MoP to appoint judges. The letter reads:

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.

R.P. Luthra’s petition, later, did not get posted before the same Division Bench that heard the matter first; instead, it was posted before a three judge-bench presided by the CJI. Even the hearing date fixed by the earlier DB was advanced. The CJI-Bench 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 because of a Constitution Bench’s earlier decision.

Need to fix a time limit for acting on collegiums recommendations.

The impasse highlights the need for fixing a time-frame for Centre to act upon the Collegium’s recommendations. During December 2016, after sitting over the files for months, the Centre rejected almost half of the collegium recommendations for HC judges.  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 recommended judges. Justice Lodha felt that the Government dropped Gopal Subramanium’s name without consulting the Collegium.  But before the Collegium could reiterate his name, Gopal Subramanium withdrew his consent.

As per the dictum in the ‘Second Judges Case’, if the Collegium reiterates a recommendation despite the Government’ initial rejection, then the recommendation binds the Government. To avoid this situation, the Government is sitting on those recommendations, which do not find favour with it, making no explicit rejection. The Government adopts this ‘pocket veto’ selectively. While some recommendations of elevation and transfer are acted upon, others are put in cold storage—indefinitely. As illustrated above, while the Government sat on the transfer of Justice K.M Joseph, it cleared many other transfer recommendations. The reason?

 Justice Joseph presided over a bench of Uttarakhand HC that quashed the presidential rule imposed by Centre after dissolving Uttarakhand Assembly. Many in legal circles wonder whether Justice Joseph is ‘paying the price’ for rendering judgment against the Centre. The selective way the Centre acts upon some recommendations ignoring others will have a chilling effect on the independence of the judiciary, as it could be construed as a subtle signal for the judges to toe the executive line—or pay the price.

The selective inaction by the Government has led to huge disappointment and unhappiness amongst the members of the collegium. And disquiet among the judges across the board. Sources close to the Collegium reveal that the four judges clarified 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 the delay in judicial appointments, the present CJI, Justice Misra, is not perceived to be asserting the judicial independence, if not its supremacy, to address the issues affecting judiciary.

Last December, the Government tried to pass the buck to the judiciary, when the Minister of State of Law & Justice, P.P Chaudhary, in Lok Sabha told that Government had received no recommendations from SC for filling up the current judicial vacancies. In this backdrop, it needs to be anxiously watched how the Government will respond to the latest collegium recommendations. In the first week of January, the Collegium recommended the elevation of Justice K.M Joseph and Senior Advocate Indu Malhotra, and also the transfer of several other judges. About their elevation, the Collegium made this 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 or being returned by the Central Government. Indeed, the Government denied it. All is said and done, the Government’s response to these recommendations will act as a litmus test for the Executive deference to the time-honoured, hallowed jurisprudential concept: the judicial independence.