Government sends back SC collegium's recommendation to appoint Justice Joseph; CJI refuses to stay Indu Malhotra's appointment

The controversy over the non-appointment of Uttarakhand High Court Chief Justice K M Joseph to the Supreme Court escalated on Thursday afternoon as the Law Ministry wrote to the Supreme Court's collegium asking it to reconsider its recommendation for Justice Joseph. Meanwhile, the Congress held a news briefing where Kapil Sibal cited the apex court's website to elaborate on how Justice Joseph is suitable for and deserving of the appointment.

In its letter to the Collegium, the government has (a) approved the appointment of senior advocate Indu Malhotra to the Supreme Court and (b) made observations over recommendation for Justice Joseph.

The observations are the following:

1. Justice Joseph is placed at number 42 in the All India High Court Judges' Seniority list and there are presently 11 Chief Justices of various High Courts who are senior to him.
2. Ten High Courts are currently not represented in the Supreme Court.
3. If Justice Joseph is appointed, there would be two judges in the Supreme Court whose parent high courts would be the Kerala High Court.
4. There hasn't been any SC/ST representation in the Supreme Court for a long time.

After listing these and other arguments, the Law Ministry states that the proposed appointment of Justice K M Joseph as a Judge of the Supreme Court at this stage doesn't appear to be appropriate. It has then referred his recommendation back to the Supreme Court collegium for reconsidaration.

Law Minister Ravi Shankar Prasad also held a news briefing on the matter and attacked the Congress, accusing them of having no moral right to question the judiciary:

"The Congress party record of giving unfair and in many ways unconstitutional treatment to the judiciary is well known. The whole record of Congress party is littered with repeated instances of superseding inconvenient judges and comprising with dignity of judiciary. Justice Hegde, Justice Shellat and Justice Grover in early 70s. The legendary judge HR Khanna who gave the dissenting judgement in ADM Jabalpur and upheld the freedom of Indians during Emergency was denied the post of Chief Justice even for two months and superseded by his junior. In fact the real provocation for imposition of Emergency was a judgement of Allahabad HC on Indira Gandhi. 

This government is led by Modi, Rajnath Singh, Jaitley, Swaraj, Ravi Shankar Prasad and many others who’ve fought against Emergency and suffered for three main freedoms - individual freedom, media freedom and independence of judiciary. Our commitment for independence of judiciary is complete and total."

Shortly after the developments mentioned above, the President of India approved Indu Malhotra's appointment as a Supreme Court Judge with her swearing-in to take place on Friday.

Meanwhile, Indira Jaisingh and other lawyers petitioned the Supreme Court to stay Indu Malhotra's appointment till Justice Joseph's case is cleared, to which the CJI said that the government has a right to send back the name of a judge for reconsideration to the collegium, and that it is unthinkable, unimaginable and inconceivable that the Supreme Court would stay the appointment of Indu Malhotra. It refused to list the matter for urgent hearing, saying: "it's not an eviction matter or a demolition matter that it should be heard on a priority basis. It will come in due course."

Earlier on Thursday, a number of senior Congress leaders raised the matter, alleging that the reason Justice Joseph hasn't been elevated had something to do with him striking down the Centre's 2016 order to impose President's rule in Uttarakhand.

Abhishek Manu Singhvi has called for the collegium to issue a notice of contempt:

P Chidambaram, meanwhile, has also added a communal angle to the matter: 

Speaking to reporters, Congress Rajya Sabha MP KTS Tulsi said that he welcomes Indu Malhotra being cleared but "one can't judge judges by whether they decided in your favour or against. They are decided on their merits. This government is revengeful towards people who have decided against them".

The new controversy comes mere days after the Chairman of the Rajya Sabha, VP Venkaiah Naidu, had rejected the Opposition parties' motion to impeach the Chief Justice of India (CJI) on grounds of 'misbehaviour'. After the VP's rejection, the Congress had declared its intention to challenge the order in the Supreme Court and had issued a post declaring CJI Dipak Misra a 'bench-fixer'.