Unimaginable, never heard before: SC on plea to stay Malhotra's elevation

The Supreme Court on Thursday refused to stay the presidential warrant appointing senior woman lawyer Indu Malhotra as an apex court judge, saying the Centre was well within its right to return the Collegium's recommendation to elevate Uttarakhand Chief Justice K M Joseph as a judge of top court.

The apex court said the government's decision to send the name of Justice Joseph for reconsideration by the collegium will be dealt in accordance with the constitution bench verdicts of 1993 and 1998, also described as second and third judges cases, which gave powers to the collegium for selection of judges.

"Constitutional propriety demands that the warrant of appointment of Indu Malhotra shall be implemented," a bench headed by Chief Justice Dipak Misra said while expressing anguish that lawyers are filing petition to stall the swearing in of a fellow senior advocate.

The bench, also comprising Justices A M Khanwilkar and D Y Chandrachud, was hearing a petition mentioned on behalf of over 100 Supreme Court lawyers led by senior advocate Indira Jaising alleging that Centre was interfering with the administration and independence of judiciary by selectively acting on the Collegium's recommendation for appointment in the apex court.

"What kind of prayer is this? Lawyers filing a petition to seek stay of an appointment of a member of a bar. Supposing the government is sending it for reconsideration, it will be seen. You are saying, stay the warrant. It is unthinkable, unconscionable, unimaginable and, if I may add, never heard before," the CJI said.

"What is this? How do you know? They might have sent it for reconsideration. If it is sent for reconsideration, the controversy is over. That is fair. Let us see what is the communication and whether they are sending for reconsideration or not. Please understand this," the bench said.

The apex court also held that there was no infirmity in segregating the names recommended by the collegium.

Besides Malhotra, the Collegium comprising the CJI and four senior most judges of the apex court--Justices J Chelameswar, Ranjan Gogoi, M B Lokur and Kurian Joseph in its meeting on January 10, had also recommended the name of Justice Joseph for elevation as an apex court judge.

The bench said suppose 35 names are recommended by the collegium for appointment as judges to a high court, should all appointments be stalled just because the government sends back five names and clears only 30.

"How will the high court function then? We can't stall the appointment of all the judges. We cannot say you accept all or reject all," it said while refusing to give urgent hearing to the petition which will be listed in the normal course.

Jaising said they were only worried about the executive's interference and independence of judiciary.

"Government cannot do cherry picking in appointment of judges. It cannot segregate names sent by collegium for appointment as judges. Either it can reject all or select all but cannot segregate the names," Jaising said while making it clear that the Bar stood firmly behind Malhotra and their grievance was not against her elevation in any manner.

"Just a minute, it's enough," the CJI said, adding 'you don't understand. That is very loud and clear and nobody understands it. So many names have come. We also interact with them and then find out who is the most suitable'.

Jaising said Malhotra should not be sworn in as the apex court judge tomorrow and the Centre be directed to recommend the name of Justice Joseph as well.

She said there was an impression at the Bar that judges' appointments were not being made as there are some judgements which do not favour or suit the executive.

"We don't want to carry the impression in the Bar that certain people are rejected just because they have passed a particular judgment," she said and referred to a verdict passed by a bench headed by Justice Joseph which had quashed the President's rule in Uttarakhand in 2016, when the state was ruled by Congress.

The senior activist lawyer, who was the additional solicitor general during the erstwhile United Progressive Alliance regime, said, "Judgments passed by a judge cannot be a consideration for appointment of a judge."

Justice Chandrachud said there were several instances when it was found that the government appointed some names from the list recommended by the collegium and sent back the rest for reconsideration and there was nothing unusual in it.

The bench, however, said, "If it is the case of cherry picking, then it could be a serious issue which can be dealt by the court."

Justice Chandrachud said in some cases, if some names are cleared by the government and others have been sent back and again reiterated by the collegium, the judge ends up being junior to former. "This is one of the issue which we may consider," the bench said.

Jaising said, "We want that the government should first take permission from Chief Justice of India for appointing one and not appointing the other from the recommendation of the collegium."