Indu Malhotra becomes SC judge while KM Joseph remains on-hold
The government and judiciary are heading towards a fresh row; yesterday, in an unusual move, it cleared one name recommended by the collegium, keeping the other on hold. Indu Malhotra has now been appointed an SC judge, the first woman to become one directly from the Bar. Meanwhile, Justice KM Joseph, who overturned the Center's order of President's Rule in Uttarakhand, remains on hold.
The collegium, a body of five top judges led by the chief justice (CJI), had recommended both names on January 10. According to Justice Kurian Joseph, this was the first time that there had been no movement for three months after recommendation. The government is reportedly considering KM Josephs's seniority as a reason to reject him; he's only 42nd in the all-India seniority list.
Ever since Justice Joseph of Uttarakhand HC struck down the Center's order to impose President's Rule in the state in 2016, the Center has not only blocked his appointment to the SC, but also his transfer to Andhra Pradesh, as was recommended by the collegium.
The Law Ministry can send Joseph's name back to the collegium, which can then recommend someone else, or propose his appointment again. In the latter case, the government will be forced to approve him. Guidelines mandate that judges who have been cleared together should be appointed together, since otherwise it would affect their seniority in the SC in relation to each other.
In recent weeks, Justices Jasti Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph had written to CJI Dipak Misra, urging him to speak up on the delay in appointment. Sources said Misra wasn't consulted by the government, but it still puts him in a tight spot as he faces the heat of an impeachment motion in the Rajya Sabha. Misra is yet to respond.
A similar case happened in 2014, when the same government left out Solicitor General Gopal Subramanium but approved the appointment of three others recommended together. Then-CJI RM Lodha had written a strongly-worded letter to Law Minister Ravi Shankar Prasad, who is still holding the post. Lodha had warning against such "unilateral segregation" in the future. Subramanium had withdrawn consent after his name was returned.
Since 2014, the government has had an on-and-off war with the judiciary, which has accused it of trying to control judicial-appointments by passing the National Judicial Appointments Commission Bill, sitting on recommendations without explanation, and stalling transfers. Recently, it took another rare step: against the collegium's recommendation of making Punjab and Haryana HC Additional Judge Ramendra Jain permanent, it gave him a six-month extension.
Meanwhile, Malhotra, who specialized in arbitration, has been appointed an SC judge. Ten years ago, Malhotra was the second woman lawyer to be made senior SC advocate after Justice Leila Seth. Presently, of the 24 judges in the top court, only one, Justice R Banumathi, is a woman. In 2014, she became the sixth woman to become an SC judge.