Justice KM Joseph's name has not being cleared by the government for the Supreme Court (file photo)
New Delhi: As the government on Thursday sent back one of the two names recommended for the Supreme Court by the collegium or a group of five most-senior judges - justifying the fear of many of his colleagues - Chief Justice of India Dipak Misra said there was "nothing wrong" in it. The government, rejecting Uttarakhand Chief Justice KM Joseph's elevation, has asked the top judges to be "objective and fair" and reconsider their choice. The second candidate, Indu Malhotra, was approved on Wednesday, three months after the collegium sent both names to the centre. If the judges decide to send Justice Joseph's name back, the government can only delay, not stop his appointment.
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The Chief Justice, who leads the collegium, rejected a petition by over 100 lawyers that Indu Malhotra's appointment be on hold until both judges were appointed together without segregation. He said "it would be unthinkable, unimaginable and inconceivable" to delay the elevation of Indu Malhotra, the first woman lawyer to be promoted to the Supreme Court directly.
"If the centre has segregated the recommendation and sent one of the names for reconsideration then they are within their rights," the Chief Justice said. Former Solicitor General Indira Jaising had urged him to put off Indu Malhotra's oath, saying "independence of the judiciary must be saved at all cost".
Asserting that the decision to send back Justice Joseph's name has the support of both President Ram Nath Kovind and Prime Minister Narendra Modi, the government said the Supreme Court collegium must "explain why (Justice Joseph) was appointed and chosen despite other judges being senior". The other argument was that Kerala would be over-represented in the top court were he to be chosen. Acknowledging the seniority question while making its recommendation, the collegium had said Justice Joseph, though 45th in line, was "more deserving and suitable in all respects" than others.
The Congress alleges that the government is punishing Justice Joseph for his decision to cancel central rule in Uttarakhand in 2016, a move that enabled the return of the Congress government of Harish Rawat. "Is the Modi government above the law?" tweeted senior party leader P Chidambaram.
The centre had also held back its approval when a month after his verdict on Uttarakhand, Justice Joseph was recommended for the joint high court for Andhra Pradesh and Telangana - a bigger role.
Government sources deny that their objection to Justice Joseph is linked to the Uttarakhand verdict. In that case, they said, Justice JH Khehar would not have become Chief Justice after striking down a government move to change the way judges are appointed.
Law Minister Ravi Shankar Prasad said the Congress has "no moral authority" to ask about the dignity of the court. "The history of the Congress is littered with instances of judiciary's independence being compromised," he said, referring to the Emergency imposed by then prime minister Indira Gandhi, the grandmother of Congress president Rahul Gandhi.
Hours before the government cleared Indu Malhotra's appointment, Justices Ranjan Gogoi and Madan Lokur - both members of the Supreme Court collegium - asked Chief Justice Misra to call a "full court" of all judges to discuss "institutional issues and the future of the court". The Chief Justice has not responded to the letter.
In January, the four judges - Justices Chelameswar, Lokur, Gogoi and Kurien Joseph - had gone public with their concern that "administration of the Supreme Court is not in order". Among the worries they had flagged was a threat to the Supreme Court's integrity.