A dangerous incursion

A dangerous incursion

Context

The opposition of the government to the elevation of Justice K.M. Joseph is on specious grounds

What has happened?

The government’s opposition to the elevation of the Chief Justice of the Uttarakhand High Court, Justice K.M. Joseph, to the Supreme Court, as recommended by the Supreme Court collegium as far back as January 10, 2018, is per se unprincipled. Its logic is faulty, both statistically and otherwise.

Centre targeting the judge. Why?

• Justice Joseph pronounced a historic judgment in April 2016 when he struck down the imposition of President’s rule in Uttarakhand
• Justice Joseph’s request to be transferred to the Andhra Pradesh High Court on health grounds since he had undergone a bypass surgery was ignored
• In May 2016, the collegium had cleared his transfer to the Andhra Pradesh High Court. For inexplicable reasons, the recommendation was not forwarded for approval to the then President of India

The reasons listed by the Union government

1. Reason: Seniority

In the All India High Court Judges Seniority List, Justice Joseph is placed at serial number 42 and that 11 Chief Justices of various High Courts in the said list are otherwise senior to him

Analysis:

• Justice Joseph was, obviously, elevated as Chief Justice of the Uttarakhand High Court on account of his qualities as a judge over other judges who might otherwise have been senior
• Seniority among High Court judges has never been the only benchmark for appointment as Chief Justice of a High Court or elevation to the Supreme Court.

Examples:

Ever since 2014, the government of the day has never considered seniority as the only basis for elevation

When Judges Deepak Gupta and Navin Sinha were appointed in February 2017 to the Supreme Court, there were 40 High Court judges across India senior to them etc.

2. Reason: Regional Representation

Several High Courts including smaller high courts are not represented in the Supreme Court at present

Analysis:

• Justices K.G. Balakrishnan, Cyriac Joseph and K.S.P. Radhakrishnan were all from the Kerala High Court despite the Law Minister calling it a relatively small High Court.
• This was at a time when the strength in the Kerala High Court was less than 40 judges
• Justices K.S. Paripoornan and K.T. Thomas were also elevated to the Supreme Court from the Kerala High Court when its strength was just 21.
• So, a small High Court such as Kerala’s has had a slew of elevations perhaps because of the outstanding quality of individual judges
• The reason given by the Law Minister that in elevating Justice Joseph there would then be two judges from the Kerala High Court —which he considers inconsistent with the concept of adequate regional representation — is clearly specious.

Other arguments against the regional representation

• Justices Shantanagoudar and Abdul Nazeer, were elevated on the same day. If two judges can be elevated from Karnataka, especially in light of the fact that Justice Kurian Joseph, also from Kerala, is going to retire in the course of this year, the logic of not having two judges from the Kerala High Court is clearly manufactured only to oppose Justice Joseph’s appointment.
• The Allahabad High Court, which has a sanctioned strength of 160, should have many more than two judges
  • This logic also applies to the Punjab and Haryana High Court as well as the Bombay High Court. While the Allahabad High Court has two judges in the Supreme Court, the Bombay High Court has three
  • Therefore, the opposition to Justice Joseph’s elevation on the basis of inadequate regional representation is a bogey.

3. Reason:  Inadequate representation of the Scheduled Castes (SC) and the Scheduled Tribes (ST) in the Supreme Court

Analysis:  

• The total sanctioned strength of the Supreme Court is 31 judges.
• At the moment, there are 25. Six judges are to retire this year. Consequently, its strength, if no judges are appointed, will be reduced to 19. There will be 12 vacancies.
• If the government so chooses, it can give representation to the SCs and STs consistent with its logic.
• But this logic cannot be advanced in opposing Justice Joseph’s elevation. Such an argument only betrays the real intent behind the opposition

Malafide intent of the government

• It is crystal clear that the opposition to Justice Joseph is mala fide
• The executive is seeking to blatantly interfere in the appointment process.
• If the government’s stand is legitimised, such incursions on the independence of the judiciary will become routine
• We want our judges to be immune to extra-constitutional pressures.
• That immunity is the only way to protect our citizens

Conclusion

A judiciary that capitulates (yields, surrenders) is the greatest danger to democracy.