SC collegium may recommend Justice KM Joseph’s name for elevation again

The government is preparing for the eventuality of the Supreme Court collegium recommending the name of Uttarakhand chief justice KM Joseph once again for elevation to the top court, a week after the law ministry suggested that the collegium reconsider his choice.

While it is expected that the SC’s five-member collegium will meet on this issue on Wednesday, no official notification on this had been issued till late Tuesday and HT learns the meeting isn’t confirmed. “Historically, the collegium has usually sent the same recommendation back even after the government suggested that it be reconsidered,” said a government official who asked not to be named. “The issue here is whether seniority and regional representation should be allowed to take a back seat or not,” this person added.

Last Wednesday, the government cleared the appointment of senior advocate Indu Malhotra as an SC judge but put on hold the collegium’s recommendation on elevating Joseph.

Soon after, Union law minister Ravi Shankar Prasad wrote to Chief Justice of India Dipak Misra to say, “The proposed appointment of justice KM Joseph at this stage does not appear to be appropriate. It would also not be fair and justified to other more senior, suitable, and deserving Chief Justices and senior judges of various high courts.”

The letter pointed out that justice Joseph is 42nd in seniority among the high court judges and many HCs such as Gujarat, Calcutta, and Jammu and Kashmir are not represented in the SC.

“We will decide our next step after we receive the Collegium’s recommendation,” a second government official said on condition of anonymity.

Legal experts say the government may not have the scope of seeking yet another reconsideration if the collegium suggests justice Jopesh’s name again, but that it could adopt another strategy. “The collegium is well within its rights to send the same recommendation once more. But the government can sit over the proposal as no deadline has been fixed for it to approve the decision,” former law secretary TK Vishwanathan said.

Advocate Muhammad Khan, also a Congress spokesperson, said, “There is no provision in any statute which authorises the government to veto the collegium’s choice. If the government is allowed to dictate terms, even seemingly harmless ones (to SC), it would lead to a situation of effective control.”