NEW DELHI: The Supreme Court Collegium is expected to met today on Justice KM Joseph’s elevation to the Supreme Court. All eyes were on the meeting as the Centre last week cleared the name of Justice Indu Malhotra but returned to the collegium the name of Justice KM Joseph for reconsideration. The Supreme Court collegium unanimously decided to defer the decision on elevation of Joseph to the top court.

The resolution adopted by the five judges read:

"The Collegium met to consider the following Agenda: 'To reconsider the case of Mr. Justice K.M. Joseph, Chief Justice, Uttarakhand High Court [PHC: Kerala], pursuant to letters dated 26th & 30th April, 2018 received from Ministry of Law & Justice, Government of India and also to consider the names of Judges from Calcutta, Rajasthan, and Telangana & Andhra Pradesh High Courts for elevation as Judges of the Supreme Court, in view of the concept of fair representation.' Deferred."

Last week, the government contended that Joseph is number 42 on a list of seniority of judges, and additionally -- as Joseph is from Kerala -- there are already two judges from the Kerala High Court in the Supreme Court. The opposition, however, have questioned whether the government’s resistance to elevating Joseph is linked to Joseph’s 2016 order quashing President's rule in Uttarakhand whilst he was serving as Chief Justice in the state.

Justice Joseph’s elevation has become a major controversy, as it’s seen as an example of the centre meddling in the functioning of the judiciary. As per current law, the elevation of judges is a matter for the Collegium, and if the Supreme Court Collegium reiterates the name of Justice KM Joseph for elevation to the top court, the Centre has to accept the Collegium’s decision as per convention.

The BJP government, on coming to power in 2014, had proposed a National Judicial Appointments Commission (NJAC) which would have been responsible for the appointment and transfer of judges to the higher judiciary. It was constituted through an amendment in the Constitution, with the Constitution (Ninety-Ninth Amendment) Act, 2014 or 99th Constitutional Amendment Act-2014 passed by the Lok Sabha on 13 August 2014 and by the Rajya Sabha on 14 August 2014. The NJAC Bill and the Constitutional Amendment Bill, was ratified by 16 of the state legislatures in India, and subsequently assented by the President of India in December 2014. On 16 October 2015 the Constitution Bench of Supreme Court by 4:1 Majority upheld the collegium system and struck down the NJAC as unconstitutional, and as such, the Collegium retains sole independent authority on the matter of elevation of Judges.

As such, at present the centre is bound by the decision of the Collegium. The Collegium's decision to defer the decision could be interpreted as its acknowledgment of the Centre's suggestion of enabling fair representation in appointment of judges.

Timeline of recent events:

On January 10, 2018 the Supreme Court Collegium's file recommending the elevation of Kuttiyil Mathew Joseph, Chief Justice of Uttarakhand High Court, and Indu Malhotra, senior counsel of Supreme Court, reached the Law Ministry.

The central government went ahead with the appointment of Malhotra and asked the collegium to reconsider the elevation of Justice Joseph. In a letter, which came after three months, the government said that while recommending the name of Justice Joseph, the collegium has disregarded seniority and regional representation.

In 2016, the centre filed an affidavit in Uttarakhand High Court defending President's rule, which it said, was imposed because "constitutional machinery had broken down in the state." A two-judge bench headed by chief justice K M Joseph was hearing the plea filed by Harish Rawat against Centre’s imposition of President’s Rule on March 27, 2016. The Court quashed the president’s rule and asked for floor test in the assembly.

The current controversy is in light of the Collegium recommending Joseph’s name for elevation, and the Centre returning the name for reconsideration in April 2018. The Collegium decided to defer an order in the meeting on May 2.

Current Debate

The Centre’s decision to return the name for reconsideration has been criticised by the opposition as being tied to an agenda. Congress leader and former Union finance minister P Chidambaram had questioned, "What is holding up Justice K M Joseph's appointment? His State or his religion or his judgement in the Uttarakhand case?"

Questions have been raised over the manner in which the Government “segregated” the recommendation. Congress leaders had alleged that Justice Joseph’s order in 2016 might be the cause of discomfort for the government in allowing the elevation of Justice Joseph.

“What governments do by segregating recommendations, is (to) throw plans of the Collegium for seniority or ensuring a certain succession of future Chief Justices out of the window. By simply sitting over the file for weeks and then picking one and not the other, a whole new succession comes into play. This is interference in the judiciary, apart from, of course, rejecting names that the government doesn’t find favourable,” former Chief Justice of India Justice R M Lodha said last week. “The Chief Justice of India, in such a situation, should immediately call a meeting of the collegium and take up the matter with the government. If the reiteration must be done, it must happen immediately.” He added that the Memorandum of Procedure, which lays out the terms of engagement between the Centre and the judiciary, “as is established and operational” does not talk of segregation but the “settled convention is that the government cannot segregate the names.”

"Government will be responsible. This kind of interference by the executive is definitely uncalled for. By delaying this, they have definitely interfered in seniority rules and in that sense, they have interfered in the functioning of the judiciary. A very serious matter. The civil society and the judges of the Supreme Court in full court should discuss and take it up with the government," Supreme Court Bar Association president Vikas Singh told PTI in his individual capacity.

Justice Kurian Joseph, a member of the collegium, had last month written to the Chief Justice of India Dipak Misra calling the three-month gap an attempt to threaten the "very life and existence" of the Supreme Court and asked him to take steps else "history will not pardon us". A similar letter was also written by the court's second most-senior judge Justice Jasti Chelameswar last month.