Appointments & TransfersNews

The Collegium comprising of Ranjan Gogoi, CJ and A.K. Sikri, S.A. Bobde, N.V. Ramana and Arun Mishra resolves to reiterate its recommendation dated 10th January, 2019 for transfer of Justice T.B. Radhakrishnan, CJ of Telangana High Court to Calcutta High Court.

[Dated: 19-02-2019]

Supreme Court of India

Appointments & TransfersNews

The Collegium comprising of Ranjan Gogoi, CJ and A.K. Sikri, S.A. Bobde, N.V. Ramana and Arun Mishra, JJ., reiterates its recommendation dated 15th January, 2019 for transfer of Mr Justice S. Venkatanarayana Bhatti of Andhra Pradesh High Court to Kerala High Court.

[Dated: 19-02-2019]

Supreme Court of India

Case BriefsSupreme Court

“It is difficult to accept the prayer of the petitioner that the expression ‘Chief Justice’ appearing in the Supreme Court Rules, 2013 be read as ‘Collegium’ of first five senior most Judges for the purpose of allocating the matters. At the same time, we feel that debate generated as a result has served its purpose.”

Supreme Court: While deciding the writ petition that sought devising of a more transparent system in allocation of cases to Benches in the Apex Court, the Bench comprising of A.K. Sikri and Ashok Bhushan, JJ. relied heavily on a 3-Judge Bench decision in Asok Pande v. Supreme Court of India, (2018) 5 SCC 341, to hold that “ ‘Chief Justice in his individual capacity is the Master of Roster and it cannot read as Collegium of first three or five Judges. Thus, it is his prerogative to constitute the Benches and allocate the subjects which would be dealt with by the respective Benches“. The petitioner, Shanti Bhushan, Senior Advocate was represented by Senior Counsel Dushyant Dave while K.K. Venugopal, Attorney General of India led the response.

The writ petition was filed seeking the Court to clarify the administrative authority of Chief Justice of India as the Master of Roster and for laying down the procedure and principles to be followed in preparing the Roster for allocation of cases. At the outset, the petition acknowledged the legal principle that CJI is the Master of Roster and has the authority to allocate the cases to different Benches/Judges of the Supreme Court. However, it was contended that this power is not to be used to assert any superior authority by the Chief Justice and the power is to be exercised in a manner that is fair, just and transparent. It was apprehended that keeping in view the predisposition of particular Judges, CJI may assign cases to those Judges to achieve a predetermined outcome. According to the petitioner, there was a need for devising a more rational and transparent system of listing and re-allocation of the matters to avoid any such possibilities. As per the petitioner, the matters need to be listed by strictly following the provisions of the Supreme Court Rules, 2013 which empower the Chief Justice to allocate certain cases exercising his discretionary powers. The petitioner submitted that in order to ensure that such a discretion is exercised in a fair manner, the expression ‘Chief  Justice’ should be interpreted to mean ‘Collegium’ of first 5 Judges of the Supreme Court, as held by this Court in Supreme Court Advocates-On-Record Association v. Union of India, (1993) 4 SCC 441.

The Supreme Court after a meticulous consideration of all the submissions made on behalf of the petitioner and perusal of various rules and the law including binding precedents, held that “the two most obvious functions of the ‘Chief Justice’ are to exercise judicial power as a Judge of the Court on equal footing as others, being ‘among equals’ and to assume responsibility of the administration of the Court”. The observations and opinions of the Hon’ble Judges that gave a unanimous decision, while delivering separate opinions, are summarized hereinafter:

  • Chief Justice of India is the Master of Roster for allocation of cases to Benches of the Supreme Court.
  • The term “Chief Justice” appearing in Supreme Court Rules, 2013 cannot be read as “Collegium” of 5 senior most Judges for the purpose of allocation of matters.
  • The matters need to be listed and assigned to the Benches in accordance with the Supreme Court Rules, 2013 and the Handbook of Practice and Procedure.
  • There is no harm in adopting healthy practices in foreign Judicial systems. “Reforms in the administration of Justice is a continuing process. We all learn from experiences and strive to do better”.
  • Rules framed under Article 145 of the Constitution specifically empower the Chief Justice to nominate Benches for hearing cases or appeal. Non-containing of any specific provision in the Constitution empowering the Chief Justice to frame the roster to allocate the cases is inconsequential since the entire subject was to be covered by rules made under Article 145.

The Court found fortification of its views mentioned hereinabove in the recent Constitution Bench Judgment in Campaign for Judicial Accountability and Reforms v. Supreme Court of India,(2018) 1 SCC 196and the 3 Judge-Bench decision in Asok Pande v. Supreme Court of India, (2018) 5 SCC 341. The petition was accordingly disposed of with the above-mentioned observations.[Shanti Bhushan v. Supreme Court of India, (2018) 8 SCC 396, decided on 06-07-2018]

Appointments & TransfersNews

After being criticised for refusing to clear Uttarakhand Chief Justice KM Joseph’s name for elevation to Supreme Court, Law Minister Ravi Shankar Prasad has written to CJI Dipak Misra, citing reasons for the refusal and asking the collegium to reconsider Justice KM Joseph’s elevation.

The letter states:

“the proposed appointment of Shri Justice KM Joseph as a judge of the Supreme Court at this stage does not appear to be appropriate.”

Below are the reasons given by the Centre for refusing Justice KM Joseph’s appointment as a Supreme Court judge:

  • In the All India High Court Judges’ Seniority List, Justice KM Joseph is placed at  Number 42 and there are presently 11 Chief Justices of various High Courts who are senior to him.
  • Around 10 High Courts, including the High Courts of Calcutta, Chhattisgarh, Gujarat, Rajasthan, Jharkhand, Jammu & Kashmir, Uttarakhand, Sikkim, Manipur and Meghalaya, are not represented in the Supreme Court at present.
  • Justice KM Joseph, who’s parent High Court is Kerala High Court, if elevated will be the second judge from a relatively small High Court.
  • There is no representation of Scheduled Caste/Scheduled Tribe in the Supreme Court.

The letter stated that for the aforementioned reasons, the Government has been constrained to segregate the recommendation of the Supreme Court collegium. On the question whether the Government can segregate the recommendations made by the Collegium, the letter clarified:

“such segregation of proposals has been done in many cases earlier, which include appointment of judges to various High Court and also to the Supreme Court in interest of expeditious action on appointments and filling up of vacancies.”

Background of the controversy: 

On 19.01.2018, the Supreme Court collegium, comprising of the five senior-most judges, had recommended the names of Uttarakhand Chief Justice KM Joseph and Indu Malhotra for elevation to the Supreme Court. While the Centre cleared Indu Malhotra’s name, it rejected the collegium’s recommendation regarding Justice KM Joseph. Indu Malhotra was sworn in as the 7th woman Supreme Court judge on 27.04.2018 by CJI Dipak Misra. She is the first woman lawyer to be directly appointed as a Supreme Court judge.

While the appointment of Indu Malhotra was applauded, many Senior members of the Bar urged CJI Dipak Misra to block her appointment till Justice KM Joseph’s name is cleared. Supreme Court, however, refused to give an urgent hearing to a mentioning by a group of Supreme Court Bar Association lawyers, with 100 signatures, seeking a stay on Senior Advocate Indu Malhotra’s appointment as Supreme Court judge in light of Centre’s decision to reject Justice KM Joseph’s elevation. The SCBA resolution states:

“While we stand for nomination of Ms. Indu Malhotra, Senior Advocate and one of our distinguished members, we express our deep anguish for non-inclusion of Justice KM Joseph and selective processing of files contrary to the recommendation of the Supreme Court collegium. We strongly condemn the selective approach of the Executive and call upon the Hon’ble Supreme Court to take appropriate steps to restore independence of the judiciary. “

(Click here to read the full text of the letter)

Hot Off The PressNews

Reports suggest that Law Minister Ravi Shankar Prasad has written to a letter to CJI Dipak Misra, asking the collegium to reconsider Uttarakhand High Court’s Chief Justice KM Joseph’s name for elevation to the Supreme Court. The Law ministry says:

“it would not be appropriate, at this stage, to elevate Uttarakhand High Court Chief Justice KM Joseph to the Supreme Court.”

The letter states that Justice KM 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.

On 10.01.2018, the Supreme Court collegium, comprising of the five senior-most judges, had recommended the names of Uttarakhand Chief Justice KM Joseph and Indu Malhotra for elevation to the Supreme Court. While the Centre has cleared Indu Malhotra’s name, it has rejected the collegium’s recommendation regarding Justice KM Joseph.

While the appointment of Indu Malhotra has been applauded, many Senior members of the Bar have urged CJI Dipak Misra to block her appointment till Justice KM Joseph’s name is cleared. Senior Advocate Indira Jaising took to twitter to show her dismay over non-clearance of Justice Jospeh’s name. She tweeted:

“I appeal to the Chief Justice of India not to swear in Indu Malhotra until Justice Joseph is cleared for appointment , independence of the Judiciary must be saved at all cost.”

In another tweet, she said that if Indu Malhotra is sweared in as the Supreme Court judge, it will be illegal:

“As of now there is no collegium decision to appoint Indu Malhotra alone , hence a judge is about to be sworn in illegally , another collegium decision needed to swear her in alone to legalise her appointment , will the Chief Justice stand for independence of the judiciary please.”

Advocate Vikas Singh, President of the Supreme Court Bar Association, welcomed Indu Malhotra’s appointment, calling her a fine lawyer & a promising judge. However, on Centre’s silence on Justice KM Joseph, he said:

“I have huge reservation at the attitude of the government, there is no way by which they should not have cleared Justice KM Joseph’s name. By making one appointment and not making another, the government has interfered in functioning of the judiciary. This is a very serious matter and should be taken up with the government very strongly.”

As per the latest reports, Supreme Court has refused to give an urgent hearing to a mentioning by a group of Supreme Court Bar Association lawyers, with 100 signatures, seeking a stay on Senior Advocate Indu Malhotra’s appointment as Supreme Court judge in light of Centre’s decision to reject Justice KM Joseph’s elevation. The SCBA resolution states:

“While we stand for nomination of Ms. Indu Malhotra, Senior Advocate and one of our distinguished members, we express our deep anguish for non-inclusion of Justice KM Joseph and selective processing of files contrary to the recommendation of the Supreme Court collegium. We strongly condemn the selective approach of the Executive and call upon the Hon’ble Supreme Court to take appropriate steps to restore independence of the judiciary. “

(Source: ANI)

Hot Off The PressNews

Making Senior Advocate Indu Malhotra the first woman lawyer to be directly elevated to the Bench, Centre has cleared her name for appointment as the Supreme Court Judge. She is likely to take oath on 27.04.2018.

On 10.01.2018, the Supreme Court collegium, comprising of the five senior-most judges, had recommended the names of Uttarakhand Chief Justice KM Joseph and Indu Malhotra for elevation to the Supreme Court. While the Centre has cleared Indu Malhotra’s name, it is still silent on Justice KM Joseph’s elevation.

In the last 70 years of independence, Indian Supreme Court has seen only 6 women judges, namely, Justice M Fathima Beevi, Justice Sujata V Manohar, Justice Ruma Pal, Justice Gyan Sudha Misra, Justice Ranjana Prakash Desai and Justice R. Banumathi. Currently, Justice Banumathi is the only woman judge in the Supreme Court. Indu Malhotra, who joined the bar in the year 1983, will be the 7th woman judge. She qualified as an Advocate-on-Record (AoR) in the Supreme Court in 1988 and was designated as a senior advocate in 2007, only the second woman to be designated a senior advocate by the Supreme Court, after Justice Leila Seth.

While the appointment of Indu Malhotra has been applauded, many Senior members of the Bar have urged CJI Dipak Misra to block her appointment till Justice KM Joseph’s name is cleared. Senior Advocate Indira Jaising took to twitter to show her dismay over non-clearance of Justice Jospeh’s name. She tweeted:

“I appeal to the Chief Justice of India not to swear in Indu Malhotra until Justice Joseph is cleared for appointment , independence of the Judiciary must be saved at all cost.”

In another tweet, she said that if Indu Malhotra is sweared in as the Supreme Court judge, it will be illegal:

“As of now there is no collegium decision to appoint Indu Malhotra alone , hence a judge is about to be sworn in illegally , another collegium decision needed to swear her in alone to legalise her appointment , will the Chief Justice stand for independence of the judiciary please.”

Advocate Vikas Singh, President of the Supreme Court Bar Association, welcomed Indu Malhotra’s appointment, calling her a fine lawyer & a promising judge. However, on Centre’s silence on Justice KM Joseph, he said:

“I have huge reservation at the attitude of the government, there is no way by which they should not have cleared Justice KM Joseph’s name. By making one appointment and not making another, the government has interfered in functioning of the judiciary. This is a very serious matter and should be taken up with the government very strongly.”

(With inputs from DNA and ANI)

Hot Off The PressNews

In the latest addition to the series of letters being written to the Chief Justice of India Dipak Misra by the senior most judges of the Supreme Court, Justice Kurian Joseph writes that the the “very life and existence” of the Supreme Court is under threat and “history will not pardon us,” if the court doesn’t respond to the government’s unprecedented act of sitting on the collegium’s recommendation to elevate a judge and a senior advocate to the Supreme court.

Referring to the collegium’s decision in February to recommend the names of senior advocate Indu Malhotra and Justice K M Joseph, Chief Justice of Uttarakhand High Court, for appointment as judges of the Supreme Court, Justice Kurian Joseph said:

“it is the first time in the history of this court where nothing is known as to what has happened to a recommendation after three months.”

Allegedly the Central government is sitting on the name of Justice K M Joseph who had ruled in April 2016 against the Centre in the case of imposing President’s Rule in Uttarakhand.

He has, hence, asked the CJI to establish a bench of seven senior most judges to suo motu take up the matter of the government sitting on the two names. Demanding immediate intervention of CJI, Justice Kurian Joseph wrote:

“if there is no normal delivery on completion of the gestation period, what is urgently done is a Cesarean section. Unless such a surgical intervention is made at an appropriate time, the child in the womb dies.”

In his letter, Justice Kurian Joseph wrote that government owes a duty to take a call on the recommendation as soon as the same is sent from the Collegium. Failure to discharge their duty by sitting over on the recommendations of the Collegium doing nothing, in administrative law, is abuse of power. He further wrote:

“more than anything else, it sends a wrong message which is loud and clear to all Judges down the line not to cause any displeasure to the Executive lest they should suffer. Is this not a threat to the independence of the judiciary?”

Justice Kurian Joseph asked the CJI that:

“following the precedent in Justice Karnan’s case, we should take up the matter on the judicial side in a Bench of first seven or more as you please. I mentioned the first seven only because of the mandate of the Full Court in Justice Karnan’s case.”

He said that while Justice Karnan’s case “was a threat to the dignity of the court, the present one is a threat to the very life and existence of the institution.

Last month, Justice Chelameswar wrote a letter to the CJI, highlighting the issue of ‘executive bidding’ by Justice Dinesh Maheswari, the Chief Justice of the Karnataka High Court for the elevation of Krishna Bhat, a District & Sessions Judge. In the letter, he had said:

“I am of the opinion that this matter is now ripe for the consideration of the Full Court on the judicial side, if this institution really is to be any more relevant in the scheme of the Constitution.”

In January this year, the senior most judge of the Supreme Court of India, Justice J. Chelameswar, along with Justice Ranjan Gogoi, Justice Madan B. Lokur and Justice Kurian Jospeh, held a press conference over the controversy relating to assignment of cases by the CJI. The letter addressed to the CJI read:

“It is with great anguish and concern that we have thought it proper to address this letter to you no as to highlight certain judicial orders passed by this Court which has adversely affected the overall functioning of the justice delivery system and the independence of the High Courts besides impacting the administrative functioning of the Office of the Hon’ble the Chief Justice of India.”

Source & Photo Credit: Indian Express

Case BriefsSupreme Court

Supreme Court: In an unusual turn of events, the 3-judge bench of Dipak Misra, CJ and Dr. AK Sikri and Amitava Roy, JJ dismissed the petition that questioned the delay in finalising the Memoranda of Procedure for the appointment of judges.

Earlier on 27.10.2017, the bench of AK Goel and UU Lalit, JJ had noticed that more than one year and ten months have already gone by since the Court order the finalisation of Memoranda of Procedure and hence, there should be no further delay in finalization of MoP in larger public interest. It had, hence, issued notice to Centre and listed the matter on 14.11.2017. The 3-judge bench, however, called for an early hearing and said:

“there was no necessity or need to proceed with the same, more so, in view of the Constitution Bench judgments in Supreme Court Advocates-on-Record Association vs. Union of India (2016) 5 SCC 1

Recalling the 2-judge bench order dated 27.10.2017, the bench said:

“there is no justification or warrant to keep the special leave petitions pending and the same are, accordingly, disposed of.”

The 2-judge bench had, in it’s order, said:

“No doubt, the process is to be initiated by the Collegium and proposal is expected to be so initiated before accrual of the vacancies so as to ensure that appointments take place by the time vacancies arise and that the arrangement of acting Chief Justices does not exceed one month, as stipulated in para 5 of the Memorandum of Procedure for Appointment (MOP) currently in force, in pursuance of judgment of this Court in Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441.”

[R.P. Luthra v. Union of India, 2017 SCC OnLine SC 1295, order dated 08.11.2017]

 

Case BriefsSupreme Court

Supreme Court: Noticing that more than one year and ten months have already gone by since the Court order the finalisation of Memoranda of Procedure (MoP), the bench of AK Goel and UU Lalit, JJ said that there should be no further delay in finalization of MoP in larger public interest and hence, issued notice to Centre and listed the matter on 14.11.2017.

The 5-judge bench of the then CJI, Justice JS Khehar and J. Chelameswar, Madan B. Lokur, Kurian Joseph and AK Goel, JJ had, in Supreme Court Advocate-on Record Association v. Union of India, (2016) 5 SCC 1, emphasised upon the independence of judiciary and had called for drafting of revised MoP. The Court, hence, said:

“Even though no time limit was fixed by this Court for finalization of the MOP, the issue cannot linger on for indefinite period.”

The Court also noticed that the MoP must provide for a mechanism so that appointments of regular Chief Justices of High Courts are not unduly delayed. It further said:

“No doubt, the process is to be initiated by the Collegium and proposal is expected to be so initiated before accrual of the vacancies so as to ensure that appointments take place by the time vacancies arise and that the arrangement of acting Chief Justices does not exceed one month, as stipulated in para 5 of the Memorandum of Procedure for Appointment (MOP) currently in force, in pursuance of judgment of this Court in Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441.”

The Court, hence, issued notice to Attorney General KK Venugopal and asked senior advocate K.V. Vishwanathan to assist the Court as amicus. [RP Luthra v. Union of India, 2017 SCC OnLine SC 1254, order dated 27.10.2017]

Case BriefsHigh Courts

Delhi High Court: Mr. R.P. Luthra,  a practising advocate had filed a writ petition before the Delhi High Court challenging the recommendation of four names by the Supreme Court Collegium in May, 2016 and certain other reliefs including a declaration that the judgments passed by the Supreme Court from time to time with regard to mechanism of appointment of judges are unconstitutional. The writ petition was dismissed by the Single bench stating that a High Court cannot declare Supreme Court’s judgment as per incuriam and that the question of suitability or merits of a candidate cannot be made the subject matter of judicial review in a writ proceeding.

Now, the petitioner had appealed against the order before Division Bench contending that the same had been passed without affording adequate opportunity to the petitioner to argue the matter. He also referred to the fact that the name of a practicing Advocate had been recommended by the Collegium by the impugned recommendation without considering the candidature of appellant and other similarly placed lawyers and therefore, contended that it was violative of Articles 14, 19 and 21 of the Constitution. He further submitted that the recommendation of the Collegium being an administrative act is open to judicial review under Article 226 referring to Centre for PIL v. Union of India, (2011) 4 SCC 1. The Division Bench rejected the contention stating that there is a basic difference between ‘eligibility’ and ‘suitability’ citing Mahesh Chandra Gupta v. Union of India, (2009) 8 SCC 273, in which it was held that the appointment of a Judge of the High Court/Supreme Court requires ‘consultation’ and fitness of a person to be appointed is evaluated in the consultation process. Therefore, the evaluation of the worth and merit of a person is a matter entirely different from eligibility of a candidate for elevation, the Bench held.

The advocate also contended that the Collegium should not have made the recommendation without finalising the Memorandum of Procedure for improvement of the Collegium System of appointment of Judges suggested by the Constitution Bench vide judgment dated 16.10.2015 in Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 SCC 1. To this, the Court reverted that in the light of the order of the Constitution Bench in 2015 SCC OnLine SC 1224 dated 19.11.2015 in which while reserving the order, it was made clear that the process of appointment of Judges by the Collegium system need not remain on hold.  The appeal was dismissed accordingly. [RP Luthra v. Union of India, 2017 SCC OnLine Del 7239, decided on 01.03.2017]