Former attorney-general Soli Sorabjee says CJI should display leadership qualities but it was incorrect for the 4 judges to go public with their complaints.

New Delhi: The law of the land does not allow the central government to block the elevation of Justice K.M. Joseph to the Supreme Court, and doing so would be “unconstitutional”, eminent jurist Soli Sorabjee said Thursday.

“The government only has a voice, not a veto as far as appointments of judges are concerned,” Sorabjee told ThePrint. “But if the collegium, after considering the point of view of the government, still wants to maintain that a certain judge should be elevated, then it is binding on the government.”

In a move seen as a major snub to the Supreme Court collegium, the Modi government late Wednesday night approved the appointment of senior advocate Indu Malhotra to the top court. But the government asked the collegium to reconsider its recommendation to elevate Chief Justice of Uttarakhand High Court K.M. Joseph. The judge had ruled against the Centre’s decision to impose President’s rule in the state last year.

Sorabjee said the CJI should go ahead with the appointment and the government should clear it. If not, the latter would have to face legal action in court since that would be unconstitutional, illegal and improper, the former attorney-general said.

“You cannot stall the appointment…you have a voice, not a veto,” he said.

The Centre’s selective approval does send a message to the judges that if they do not toe the government line, they would be penalised, Sorabjee said.

“You see all this done for the reason that justices can dispense justice freely and independently…We don’t want executive or sarkari judges.” And if the executive has a say in the appointment of judges, people would cease to consider the judiciary as independent and free, he warned.

Law minister’s letter to CJI

Sorabjee’s comments came as law minister Ravi Shankar Prasad wrote to the CJI Thursday, urging the collegium to reconsider its recommendation to elevate Joseph to the Supreme Court.

“In the All India High Court Judges’ Seniority List, Shri Justice K.M. Joseph is placed at serial number 42. There are presently eleven Chief Justices of various High Courts who are senior to him in All India High Court Judges’ Seniority List,” he wrote.

While the government’s move drew sharp criticism from legal quarters, the CJI responded to the late night development by saying, “How do you know what the government has done? If they have sent back a name for reconsideration, they are well within their rights to do so under the Constitution Bench judgments. We will now examine it.”

Justice Misra was responding to senior advocate Indira Jaising who asked for staying the warrant of appointment issued in favour of Malhotra until the concerns are addressed.

Rebellion in judiciary disturbing

Speaking over the rift within the judiciary, Sorabjee said the collegium seems united on the issue of Joseph’s elevation. However, “I am very distressed to see this divided house in the judiciary,” he said. Even while there may not be a rebellion in the judiciary even the appearance of a division in the judiciary is distressful, he said.

“The court, the collegium must speak in one voice.”

If the court does not give the impression of unanimity, the faith of the public in the judiciary would fade away, he said.

How the situation unravels, he said, depends on the leadership. “In a way, the ball is in the CJI’s court.”

While the CJI is the master of the roster, he needs to exhibit leadership qualities and have a consultative approach, Sorabjee argued.

However, he said that the four dissenting judges were incorrect in making their reservations with the CJI known to the public at the historic press conference in January. “Once you go to the press,” he said, “you make the entry of politicians into the fray easy…they jump into the fray and the whole thing is politicised.”

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