After simmering for six months with the Centre rejecting and sending for re-consideration, the recommendations of the Supreme Court Collegium to elevate Justice KM Joseph, Chief Justice of the Uttarakhand High Court to the SC bench, the controversy has finally ended for now with his elevation.
Thereby, the curtains are down on the bone of contention between the judiciary and the executive which soured ties between them with the inevitable climbdown by the Narendra Modi government. With the SC having reiterated its recommendation, legal experts averred that the government had no option but to cave in. This was also vital for the health of democracy.
The government could have kept the recommendation in cold storage indefinitely, neither accepting nor rejecting it, since there is no time limit for a decision on implementation, but relations between the pillars of democracy would only have worsened.
It is prudent, therefore, that Justice Joseph has been elevated and a further confrontation averted. But the government made the judiciary acquiesce in the elevation of Madras HC Chief Justice Indira Banerjee and Orissa HC Chief Justice Vineet Saran as Supreme Court judges with higher seniority than Justice Joseph. In the process, the government saved its face.
Justice Joseph’s name was recommended for appointment as a Supreme Court judge by the collegium headed by Justice Dipak Misra on January 10 last which was followed two days later by an unprecedented rebellion within the top judiciary.
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On January 12, the four senior-most members of the Collegium after the chief justice — Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph –---addressed a media conference to criticize the CJI’s working. This was unprecedented and brought the judiciary a bad name. When the SC resolved to re-send the recommendation to the executive, it was sounded out that it must recommend some other names too which it did.
While the current controversy has been put to rest, the central issue is the process of appointment of SC judges which could again escalate when another flashpoint comes. When the court had struck down the bill on judicial appointments which provided for a government representative on the appointments panel, the bench that struck it down had resolved to address the issue subsequently, which it never did.
The government’s objection to Justice Joseph’s elevation ostensibly stemmed from his lack of seniority. He was identified as 42nd in the all-India seniority list of judges---and also on grounds that there was not a single Scheduled Caste or Scheduled Tribe judge of the Supreme Court. The need for representation to all regions was cited as another factor. Since Justice Kurian Joseph was from Kerala it was said that another judge from the same state would give disproportionate representation to Kerala.
The Opposition and other judges who opposed the government’s view felt that Justice Joseph was being denied the elevation because he had struck down the imposition of President’s rule in Uttarakhand and restored the Congress chief minister in the state which was a slap in the Modi government’s face. This reasoning was denied for the record by the Union Law Minister.
There should be no question of victory or defeat in matters related to relations between the judiciary and the executive but it is pertinent that the pillars of democracy must function on the principle of checks and balances. In that context, untrammeled power to either of the two would be against the spirit of democracy.
The two pillars and the third---legislature---must work in harmony though it is not necessary that they hold the same views.
While it is important that the appointments process for judges be streamlined, primacy must lie with the judiciary and not the executive on this. Having a government voice on the panel would better serve the principles of democratic functioning with proper checks and balances.