In a letter to Chief Justice of India (CJI) Dipak Misra, Justice Kurian Joseph said it was time the Supreme Court closed ranks and confronted the government's refusal to act on the collegium recommendation to appoint senior advocate Indu Malhotra and Uttarakhand Chief Justice K.M. Joseph as apex court judges.
Justice Kurian said the Supreme Court had to take on the government on the judicial side.
In a letter to the CJI, he said it had been over three months since the collegium, of which Justice Kurian is a member, recommended Ms. Malhotra and Justice Joseph and sent the files to the Ministry of Law and Justice. There had been no word from the government since.
He noted that the CJI 's “personal efforts” to resolve the crisis had not proved fruitful.
Justice Kurian said the “very life and existence of the institution” was under threat. He urged the CJI to set up a Bench of seven or more seniormost judges to take up the issue of government's abuse of power by sitting over the collegium's recommendations.
“Govt owes a duty to take a call on the recommendation as soon as it sent from the Collegium,” Justice Kurian wrote.
Justice Kurian recalled how a Full Court decided to set up the Bench of seven seniormost judges to suo motu initiate contempt against controversial former Calcutta High Court judge C.S. Karnan.
'Deliberate delay a threat to independence of judiciary'
He said the government's deliberate delay was a threat to the independence of judiciary. It also served as a clear message to future judges to not risk the wrath of the government. “More than anything else , it sends a wrong message which is loud and clear to all Judges down the line not to cause any displeasure to the Executive, lest they should suffer. Is this not a threat to the independence of the judiciary” Justice Kurian asked the CJI in his letter on April 9.
“History will not pardon us” if the Supreme Court judges turned a blind eye to the threat from the government, Justice Kurian said.
The letter follows a recent public address by Justice Kurian, where he termed judiciary a watchdog of democracy, which should both bark and bite.
Justice Kurian said the lack of response from the government on the appointment of Ms. Malhotra and Justice Joseph had virtually stalled the working of the collegium. “You [CJI Misra] may recall, and as has been the practice, it was our decision to send the names [to the government] in a phased manner so that there may not be any adminsitrative or other difficulty. We [Collegium] are not able to sit for the second phase since the fate of the first phase is not yet known,” Justice Kurian wrote.
Besides, he said the depleted strength of 24 judges instead of 31 are reeling under the pressure of work.
A Caesarean section is necessary to save a dying child trapped inside the womb, he wrote. “Unless such a surgical intervention is made at the appropriate time, the child in the womb dies,” Justice Kurian wrote.
