The centre has referred Justice KM Joseph's name back to Supreme Court collegium
Sending back one of the two names recommended for elevation as Supreme Court judges, the centre has said that the
proposal for reconsideration sent to the group of five most senior Supreme Court judges has the approval of the President and the Prime Minister.
On January 19, the Supreme Court had recommended the names of senior advocate Indu Malhotra and Chief Justice of Uttarakhand High Court KM Joseph.
While clearing the name of
Indu Malhotra, who would be the first woman lawyer to be directly elevated to the Supreme Court, the government said it was "constrained" to segregate Justice Joseph's name.
In a letter sent to the Chief Justice of India today, the law ministry cited Justice Joseph's seniority ranking among all high court judges and the representation given to his parent high court of Kerala.
"In the All India High Court Judges' seniority list, Justice Joseph is placed at serial number 42. There are presently 11 chief justices of various high courts who are senior to him," the law ministry wrote.
10 of the 24 high courts in India are currently not represented in the Supreme Court, the centre said, adding that the Kerala High Court has "adequate" representation in the Supreme Court and among chief justices of high courts.
Right now, the Supreme Court has one judge who started off from Kerala High Court -- Justice Kurian Joseph. He is due to retire in November this year. The chief justices of the high courts of Kerala and Chhattisgarh too come from the Kerala high court.
While recommending Justice KM Joseph, the collegium had said the judge was considered "more deserving and suitable in all respects than other Chief Justices" and senior judges of high courts.
"From our records, it is evident that to ensure regional representation, seniority may not have been taken as an important consideration but in case where the (parent) high court is adequately represented in the Supreme Court and also as chief justices of high courts, this consideration cannot be, and should not be, ignored altogether to the detriment and prejudice of other senior judges," the law ministry said.
Facing a backlash from Dalits over a Supreme Court verdict that relaxed some stringent provisions of a law that is meant to protect scheduled castes and scheduled tribes, the government also pointed out that the communities have not been represented in the Supreme Court for long.
Ever since Justice KG Balakrishnan retired as the Chief Justice of India in 2010, not a single Dalit judge has been elevated to the Supreme Court or as Chief Justice of a high court.
Saying that the proposed appointment of Justice KM Joseph as a Supreme Court judge at this stage does not appear to be appropriate, the law ministry said "it would not be fair to other more senior, suitable and deserving chief justices and senior judges of various high courts".