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Collegium Should Have Blocked Indu Malhotra Swear-In: Arvind Datar

“Centre’s rejection of Justice KM Joseph’s elevation to SC has deepened the crisis facing India’s top judiciary.”

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The government’s rejection of Justice KM Joseph’s elevation to the Supreme Court has deepened the crisis facing India’s top judiciary. This standoff with the government is one more in a long line of incidents. Then there are the instances of internal strife. Chief Justice of India Dipak Misra was openly criticised by four of the senior-most judges of the apex court. More recently, several leaders of Opposition parties moved an impeachment motion against Chief Justice Misra.

Justice Joseph is currently serving as Chief Justice of the Uttarakhand High Court. He and senior lawyer Indu Malhotra were recommended to be appointed judges of the Supreme Court by the collegium – a body of five senior-most judges of the top court, including the chief justice – which decides on judicial appointments.

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The government approved the elevation of Indu Malhotra but has returned the recommendation on Justice Joseph to the collegium, seeking a reconsideration.

“I think it’s a complete breach of constitutional convention and I don’t think it’s proper action at all,” said Arvind Datar, senior Supreme Court advocate, in an interview with BloombergQuint.

“They get one chance to raise objections. Thereafter, whatever the collegium says is the law... the judge has to be appointed.”

He thought the collegium ought to have refused to swear-in Malhotra till both recommendations were returned positively by the government.

Datar also expressed alarm at recent events surrounding the Supreme Court and efforts to undermine its independence. They hark back to the 1970s and the Emergency imposed by then Prime Minister Indira Gandhi, he said.

Edited excerpts of the interview with Arvind Datar.

Is it permissible for the government to return to the collegium its recommendation for the elevation of a judge to the Supreme Court?

This point was raised in court on Thursday, 26 April, where the matter was sought to be mentioned. And the view taken by the bench was that suppose there are 20 judges mentioned for elevation to the high court and they find that, let us say, out of the 20 in the case of three there are some objections. Should they reject the entire list? Can they not segregate three people? Now that’s an argument as far as the High Court is concerned, but that has no application to the present point.

Two names were recommended – Justice KM Joseph and Indu Malhotra. The government should approve both the names, they cannot do partial segregation. This question came up in 2014 when four names were sent for elevation. There were two chief justices – Justice Misra and Justice Goyal – along with senior advocates Rohinton Nariman and Gopal Subramanium. The government sent back the list after removing the name of Gopal Subramanium. They segregated his name. And then Chief Justice Lodha, in a very strong letter, said that once we send a name you cannot segregate a name without our knowledge and concurrence. This is the letter written by Justice Lodha in June-July 2014:

“In my opinion, it is not proper for the government to have segregated Justice Joseph’s name and approve the name of only Indu Malhotra. I think the proper course would’ve been to approve his name as well. But to answer your question they should not have segregated his name at all.”

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That’s on the issue of segregation. But what if I were to ask you whether in keeping with tradition and norm, is it permissible for the government to send back any recommendations for reconsideration? Is that something the government has the power to do? Is that something laid out in the judges’ cases?

No. Suppose for example, some names are sent for Supreme Court appointment by the Supreme Court collegium, it is open for the government to give its objections or give its comments. In the case of Justice Joseph, these comments were made saying that he’s not senior and so on.

Despite that, the collegium has said they consider him the most fit person, even though he may not be the senior-most person. Once the collegium has passed or made its comments known, there is no reason or justification for the government to still not appoint Justice Joseph. I think it’s a complete breach of constitutional convention, and I don’t think it’s a proper action at all.

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What do you think should the next move of the collegium be now? Should they just send back Justice KM Joseph’s name to the government. Is that something that the collegium is well within its rights to do based on constitutional process?

Absolutely. Suppose the objections raised by the government are not acceptable to the collegium, then under the law as it stands, the collegium can say ‘sorry, despite what you say, we insist that a particular judge be appointed to the Supreme Court.’ Then the government has no choice.

They get one chance to raise objections. Thereafter, whatever the collegium says is the law... the judge has to be appointed. In this case, it’s worse because the objections about his seniority, and there being one more judge from Kerala, has all been considered and the collegium has said that he’s the most proper person. So, I don’t know why they should not appoint the person at all.

In my opinion, the proper course would’ve been to have both of them sworn in at the same time. This is completely improper.

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Justice Joseph pronounced a judgment quashing President’s rule in Uttarakhand, where he is chief justice of the high court. And hence the government’s disapproval. Are we are looking at the politicisation of the appointment of judges to the Supreme Court?

It amounts to disrespecting the collegium, disrespecting the appointment process. You propose the National Judicial Appointments Commission Act, it was struck down (by the Supreme Court). You can’t be petulant and say that you struck down the Act and therefore I’ll start putting objections everywhere.

As far as Justice Joseph is concerned, although it is not said openly, it is widely believed that it is only because of his judgment in the Uttarakhand case that he is being sought to be denied the post of Supreme Court justice as some kind of a punishment. That’s the general perception among the entire Bar Association.

All this talk of him not being the senior-most chief justice is completely wrong, because in the past the government has appointed judges who have not been chief justices, they were taken straight to the Supreme Court. There have been many number of cases where the senior-most chief justice has not been appointed to the Supreme Court. What the government is doing is completely wrong. There is no such precedent for the government, after the collegium saying that ‘he is the right person,’ to still not issue the warrant.

People have also missed out that there is an additional judge of the Punjab and Harayana High Court who has to be confirmed as a permanent judge. The Supreme Court recommends he should be made a permanent judge. Despite that, the government appoints him as an additional judge for another six months. That’s unheard of.

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There have been several other similar cases in the past few years – Justice Jayant Patel, Justice MR Shah, Justice Mehta. What does this say about this government’s desire to allow the judiciary to remain independent in the country?

The unfortunate irony is that an independent judiciary is a great asset to the government. They don’t realise that. The difficulty is the long-term damage done to the institution. This is an institution which is highly respected and is functioning well with whatever little problems it has got.

If you are going to convey the message that an unwelcome judgment is going to be visited with penal consequences, that your promotion will be affected, you will not be made a Supreme Court justice... These are serious and unfortunate signs of not maintaining the independence of the judiciary.

For example, Jayant Patel, he could have been a chief justice in Karnataka and retired. You transfer him to Allahabad as a puisne judge, he resigns. These are serious and unfortunate signs of not maintaining the independence of the judiciary. It’s like back to the old times of the Congress where they tried every effort to undermine the judiciary.

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Whether it’s the government’s efforts to undermine judicial independence or the internal strife in the Supreme Court – how alarmed are you by the events surrounding the Supreme Court over the past few months?

I am extremely alarmed and saddened. It is a very big setback. After the Emergency, we had the judiciary in a resurgent mode emphasising human rights. Everything was going fine. Now we’re going back to the 1970s where judges who gave judgments against the government were superseded. Judges were transferred during Emergency.

There was again a letter of transfer in the 1980s after Indira Gandhi came back to power. Repeated attempts to undermine the judiciary were made. Those, fortunately, we thought had been abandoned after the 1980s.

Now, they seem to be resurrecting themselves. It is very unfortunate. I feel the collegium should have at least said that we will not swear-in any judge till both the recommendations come back. You have no business to segregate one name. That’s what Lodha had written earlier.

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What will it say about the collegium and the Supreme Court if they don’t reassert their selection of Justice Joseph?

That’s what the collegium ought to do and I hope they do it again. They must say this is our final recommendation and the executive must proceed with the appointment. I really hope they do that. If by chance they don’t appoint him, it will be an extremely sad day. It will be a very serious blow to the independence of the judiciary.

What has happened over the last six months has been quite unfortunate. This has been further deteriorating the independence of the judiciary.

(This story was first published on BloombergQuint.)

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