The Supreme Court on Thursday refused to stay the presidential warrant appointing senior woman lawyer Indu Malhotra as an apex court judge and termed the plea of advocates“unimaginable,” “unthinkable,” “unconscionable” and “never heard before.”
A Bench of Chief Justice of India (CJI) Dipak Misra took strong note of the submission of senior advocate Indira Jaising that Ms. Malhotra be not sworn in as judge and the Central government be directed to recommend the name of Uttarakhand High Court Chief Justice K.M. Joseph as well.
Dismissing claims that the government has "cherry-picked" Ms. Malhotra for appointment as Supreme Court judge over Justice Joseph, the CJI, heading a three-judge Bench, said it was "unthinkable, unimaginable, inconceivable" for the Supreme Court to stay the Presidential warrant for her appointment.
ADVERTISEMENT
The CJI said the government was free to send back Justice Joseph's name to the Supreme Court Collegium for reconsideration.
“What kind of prayer is this,” the Bench, also comprising Justices A.M. Khanwilkar and D.Y. Chandrachud, said, adding that the Centre was “well within its right to send back the recommendation for reconsideration.”
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
The government cited the All India High Court Judges Seniority List , where he stood at 42 in terms of seniority and that there were 10 High Court Chief Justices senior to him. Besides, the government said the Kerala High Court was too small a court to be represented by two Supreme Court judges. The Supreme Court already has Justice Kurian Joseph, who is the fifth seniormost judge and a Collegium member. Barely an hour after this government communication to the CJI was made known, an urgent mention was made by 100 lawyers of the Supreme Court to stay the appointment of Ms. Malhotra. They said though they were "solidly behind" Ms. Malhotra, they were equally anguished by the fact that she was cleared over Justice Joseph. Both the names of Ms. Malhotra and Justice Joseph were recommended at the same time, on January 11, by the Collegium for apex court judgeship. However, the government cleared Ms. Malhotra's name for appointment as Supreme Court judge on Wednesday.
The presidential warrant was issued earlier in the morning. She is likely to be sworn in on April 27.
Lawyers see link to quashing of Central rule in Uttarakhand
The lawyers alleged that the "bifurcation" of the two names and freezing the appointment of Justice Joseph was because he had quashed the Presidential Rule in Uttarakhand in 2016. Can the government reject a judge's elevation just because his verdict was not "palatable" to the Executive? Ms. Jaising, who represented the 100 signatory lawyers, asked. Justice Chandrachud, on the Bench, said judges, when they gave their verdicts, were not bothered if their judgments were "unpalatable" to a particular segment or not. "We follow the Constitution," he said. Justice Chandrachud drew from his decades' experience as High Court Chief Justice and said it was wrong to expect the government to clear all the names sent by the Collegium. In case of High Courts, the government was free to process one name and not the others. It could allow one name and send the others back to the Collegium for reconsideration. "If 30 names are recommended, 22 may be appointed and eight would be held back. How can you say that the government should either clear all 30 names or reject all 30 names... How will the High Court function that way?" the CJI pitched in.
"pick and choose policy"
Ms. Jaising said this "pick and choose" policy by the government was an affront to judicial independence and the rejection of Justice Joseph was a manifestation of the government's attack on the judiciary. "The Chief Justice does his work to the best of his ability... Constitutional propriety requires the warrant [for Ms. Malhotra's appointment] to be implemented," Justice Chandrachud said. The appointment of Ms. Malhotra, directly from the Bar, would not affect the seniority of Justice Joseph, he said. "The judge-designate [Indu Malhotra] assuming office tomorrow [April 27] will not affect the career of the other judge [Justice Joseph]," Justice Chandrachud said. Senior advocate and Supreme Court Bar Association president Vikas Singh persisted that the court should examine in depth the "problem of seniority when names of some judges are cleared and others are sent back by the government to the Collegium, which would have to reiterate them". Would this latter category of judges lose their seniority over the others who were outrightly cleared, Mr. Singh asked. Justices Chandrachud and Khanwilkar asked the lawyers to file a separate petition raising this question.