New Delhi: The Central government on Thursday asked the top court collegium to reconsider its recommendation for the elevation of Uttarakhand High Court Chief Justice K.M. Joseph as a judge of the Supreme Court.
"The proposal for the reconsideration of the case of K.M. Joseph has the approval of President and Prime Minister," said the letter sent to Chief Justice Dipak Misra by Union Law Minister Ravi Shankar Prasad.
The letter also communicated the President's nod for the appointment of senior lawyer Indu Malhotra as a judge of the top court.
Top sources in the Law Ministry privy to the communication said the government has invoked both the principle of seniority and the proportionality in returning the recommendation of Justice Joseph for reconsideration more than three months after the top court collegium (on January 10, 2018) unanimously recommended his name for elevation.
The sources also took pains to try to clear the "campaign" that the government was standing in the way of the elevation of Justice Joseph because of his judgment against imposition of President's rule in Uttarakhand.
Expressing "deep distress" over the "campaign", the source asserted the government's right to send back the collegium recommendation for reconsideration, contending that this right flowed from the 1993 and 1998 judgements by the benches of nine judges each.
While sending back the recommendation for reconsideration, the government has also flagged the non-representation of SC/STs in the top court judges.
The Law Minister's communication to the CJI, the sources said, also held that Justice Joseph stands at number 42 in the seniority of High Court judges and there are 11 Chief Justices of different High Courts who are senior to him -- a clear suggestion that his elevation to the Supreme Court would be at their expense.
Describing Kerala High Court as a "comparatively small High Court" with a sanctioned strength of 42 judges, the letter, the sources said, has pointed out that it - as a parent High Court - has, besides top court judge Justice Kurian Joseph, the Chief Justices of three High Courts -- Justice K.M. Joseph himself (Uttarakhand), Justice T.B. Radhakrishnan (Chhattisgarh) and Justice Antony Dominic (Kerala).
Pointing to the disproportionate representation the Kerala High Court has, the top source said that elevation of Justice K.M. Joseph to the apex court would further compound it.
However, even if Justice K.M. Joseph is elevated to the Supreme Court - the number of judges in the higher judiciary hailing from Kerala High Court would remain the same and there is also the fact that Justice Kurian Joseph is retiring on November 29 this year.
The Law Ministry also sought to buttress its reliance on seniority criteria by relying on 1993 and 1998 apex court judgments, both which said, "...Inter se seniority amongst judges in their High Court and their combined seniority of All-India basis is of admitted significance in the matter of future prospects".
However, the top court collegium in its January 10 meeting said: "The Collegium considers that at present Justice K.M. Joseph, who hails from Kerala High Court and is currently functioning as Chief Justice of Uttarakhand High Court, is more deserving and suitable in all respects than other Chief Justices and senior puisne Judges of High Courts for being appointed as Judges of the Supreme Court of India."
Defending the segregation of the collegium's recommendations by clearing the name of senior Indu lawyer Malhotra and withholding that of Justice Joseph, the source said: "The government's right to return recommendation for reconsideration can't be withheld and that does not mean that other names are put on hold".
Meanwhile, taking umbrage to the campaign unleashed by the Congress and a section of media, Minister Prasad, talking to the media in his office, on Thursday questioned the Congress' credential to speak about the independence of judiciary and the government attempt to influence it.
"The Congress Party's record of giving unfair treatments to judiciary is well-known. The whole record of the Congress is littered with repeated instances of superseding inconvenient judges and compromising the dignity of judiciary," he said, citing past instances of junior judges superseding the seniors, like Justice H.R. Khanna, in the appointment of Chief Justice of India.
Justice Khanna in ADM Jabalpur case had said that the fundamental rights could not be eclipsed even during an emergency.