On April 26, the government returned for reconsideration the collegium’s recommendation to elevate Justice K M Joseph but notified the appointment of Malhotra as a judge. (Express photo by Neeraj Priyadarshi) On April 26, the government returned for reconsideration the collegium’s recommendation to elevate Justice K M Joseph but notified the appointment of Malhotra as a judge. (Express photo by Neeraj Priyadarshi)

THE much-awaited meeting of the five most senior judges who constitute the Supreme Court Collegium, which was expected to act on its reiteration of Justice K M Joseph’s name, ended with the decision being deferred for the third time.

The meeting, which began at 4.15 pm lasted nearly two hours, the longest any Collegium meeting has lasted this year. It was attended by all five members of the Collegium, CJI Dipak Misra and Justices J Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph.

The meeting failed to reiterate Justice K M Joseph’s name despite having pre-arranged to meet to do precisely that last week, apart from suggesting other names for the Supreme Court. The apex court is currently functioning with just 25 judges, six below its sanctioned strength. Five judges of the court are scheduled to retire in 2018 — Justice Chelameswar as early as June 22.

On May 11, the Supreme Court had chosen to put its foot down, but cautiously, saying that it was for the reiteration but promising to send other names too for elevation along with the reiteration. The calculation was that simply sending the reiteration would amount to throwing a gauntlet to the Centre and likely to lead to a major confrontation.

Read | Not avenging Justice K M Joseph’s Uttarakhand order: Ravi Shankar Prasad

The Collegium had then declared in its resolution: “The Chief Justice and other members of the Collegium have, on principle, unanimously agreed that the recommendation for appointment of Mr Justice K M Joseph, Chief Justice, Uttarakhand High Court (Parent High Court: Kerala) as a Judge of the Supreme Court should be reiterated. However, the said reiteration should also be accompanied by the recommendation of the names of Chief Justices of High Courts for elevation as Judges of the Supreme Court, for which detailed discussion is required.”

The resolution had added: “In view of the aforesaid, the meeting stands deferred for being held at 4.15 pm on Wednesday, May 16, 2018.”

Despite a “detailed discussion” on Wednesday, it is not known what happened resulting in the deferral. The date of the next Collegium meeting too has not been fixed.

The Supreme Court goes on vacation after May 18 and will reconvene in July. In the past, Collegium meetings are known to have been held during the vacation as well.

There has been much debate about what is stalling the Collegium from formally reiterating his name to the Centre, despite stating they will do so “on principle” last time around. According to rules, should the Supreme Court reiterate the name, the Centre would have no choice other than to swear him in.

The matter of the elevation of the Chief Justice of the Uttarakhand High Court Justice K M Joseph was stalled by the Centre, as it refused to clear his name, while segregating the case of Justice Indu Malhotra, who was also recommended to be a judge in the same meeting of the Collegium on January 10, 2018. Indu Malhotra, the first woman member of the Bar to make it directly to the Supreme Court, was sworn in last month.

The matter of Justice K M Joseph’s elevation has become a gauge of judicial independence. This is especially because Justice Joseph, in March 2016, had struck down the Centre’s bid to dismiss the state government in Uttarakhand. The Law Minister has denied that his elevation is being resisted because of this. In its letter asking the Collegium to reconsider the elevation of Justice K M Joseph, the Government had cited over-representation of Kerala, lack of SC/ST judges and his lack of requisite seniority.

Jurists and former Chief Justices of the Supreme Court have dismissed these reasons arguing for his elevation as the litmus test for judicial independence. Jurist Soli Sorabjee had said on May 8, that the “ball lies in the court of the Chief Justice”, adding that “we don’t need sarkari judges.” Ex-CJI R M Lodha said that the government’s “segregation” of the recommendations “strikes at the very heart of the independence of the judiciary.”

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