The real reason has not been stated, which means this confrontation with the collegium is one of the government’s own making.
The Supreme Court collegium headed by Chief Justice of India Dipak Misra has stood up for the right of the collegium to appoint judges. In reiterating its recommendation to elevate the chief justice of the Uttarakhand high court, K.M. Joseph, to the Supreme Court, the five most senior judges of the country are asserting their power to make these highest judicial appointments. This will lead to a direct confrontation with the Narendra Modi government, which has put up various objections to the appointment of this particular judge. Now that the collegium has reiterated its choice, the government must accept the recommendation and make the appointment. The catch is that there is no time limit set for the procedure, which means that the executive can drag its feet and defeat the principle behind the choice for some time, but cannot negate it altogether.
The judge, who is junior to many among high court judges, has been recommended on the strength of the qualitative assessment of the collegium. While it is common enough for the Centre to ask the collegium to reconsider appointments of high court judges — there were 43 such names in 2016 — appointments to the Supreme Court are rarely questioned. The Joseph elevation, which came along with the recommendation of Indu Malhotra, the first woman lawyer to be directly elevated to the top court, makes sense as there are seven vacancies already in the apex court, besides which five judges are due to retire soon. The objections to Joseph’s appointment seem specious, one of which says he would be a second judge, in fact a second Joseph, from Kerala among apex court judges, while some other states didn’t even have one.
Why his name alone was clubbed when it came to the Centre asking about elevation of other high court judges appears only a dilatory tactic. At the same time, the Centre insists its objections have nothing to do with Justice Joseph’s ruling in the Uttarakhand Assembly case, where he had restored the Congress government to power when defections came about and the governor ordered a change of government. The real reason has not been stated, which means this confrontation with the collegium is one of the government’s own making. It is already a settled principle that the collegium will choose judges. The games over delaying Justice Joseph’s appointment to deny him seniority in the Supreme Court may go on, but the larger principle of trusting the judgment of the collegium must be upheld for democracy to work.