As Justice Indu Malhotra took oath as Supreme Court judge and the fate of Justice K.M. Joseph’s elevation remains uncertain, former Chief Justice of India R.M. Lodha on Friday said the segregation of their names by the government was a challenge to the primacy of the Supreme Court Collegium in judicial appointments.
Earlier in 2014, Justice Lodha had written to the government a scathing one-page latter against unilaterally segregating names jointly recommended by the Supreme Court Collegium without consulting the Chief Justice of India.
The letter came in the aftermath of the failed elevation of senior advocate Gopal Subramanium to the Supreme Court. Justice Lodha was the Chief Justice of India then.
Repeat after 4 years
Justice Lodha acknowledges that four years later, the government has repeated the act by de-linking Justice Malhotra’s file from Justice Joseph’s without first informing Chief Justice of India Dipak Misra. His letter had spelt out the norm and should have been followed by the government as a “matter of course”.
“What has happened to Justice Joseph goes against the very concept of the primacy of the collegium. The collegium is the final arbiter of judicial appointments. This [segregation of Justice Joseph’s file without consulting the CJI] is something not permissible,” Justice Lodha told The Hindu . He added that such segregation amounted to “tinkering”.
“When we send the names of judges, and when it is more than one, the collegium takes many factors into consideration. One of which includes who all the collegium feels fit to become CJI in due course of time. So when the list is prepared, serial numbers of 1, 2, 3, 4 are given to the names recommended to the government. These serial numbers are given to indicate who is to remain senior to whom, who is to become CJI, etc. So if the government is segregating names, it is tinkering with the list the collegium sent,” Justice Lodha said.
“It is very easy to withhold a person’s name for three months and let the other go through. So a person whom the collegium wanted to be senior, is made to become junior ... I presume Justice Joseph’s name was above that of Justice Indu Malhotra. Now if the collegium reiterates Justice Joseph, he becomes junior to Justice Malhotra. So this [is] tinkering...” Justice Lodha said.
The judicial appointments’ process is a consultative one, Justice Lodha said. “The first thing required of the government is to write to the CJI, saying, ‘Look, in the list of two you sent us, we have a problem with this person. So if you want the other name to go ahead, we can proceed’. This is how the primacy of the collegium is maintained. The government cannot do indirectly what it cannot do directly,” the former CJI said.
Though not mentioned in the Memorandum of Procedure (MoP) or in any judgments, Justice Lodha said prior consultation with the CJI before segregation is “the integral component of the primacy of the collegium”. The former CJI said the only way to resolve the crisis was a new Memorandum of Procedure wherein it was stated that segregation would be done by the government only after consulting the CJI.