CJI defends Government, supports “illegal” appointment of SC judge

Chief Justice of India Dipak Misra on Thursday defended the right of the Government to cherry pick names recommended for appointment by the SC collegium.

Responding to a plea by 100 Supreme Court lawyers who urged him to stay the Presidential Warrant for appointment of Senior Advocate Indu Malhotra as a judge of the Supreme Court, the CJI said that it was “unthinkable”, “unimaginable” and “unconscionable” to do any such thing.

There is nothing wrong , the CJI said, if the Government wanted to reconsider Justice KM Joseph’s elevation to the SC recommended by the collegium. “If four names are sent for appointment and only two are cleared by the government, how can we say 'you accept all or reject all' ? How will courts function that way?” the CJI quipped.

Legal experts and jurists however questioned the CJI’s logic. They pointed out that both the collegium as well as the Memorandum of Procedure (MoP) finalised by the collegium but which the Government has been sitting over since July last year, specified that the Government cannot pick and choose.

During the Gopal Subramanium appointment process, the CJI and collegium had stipulated that the Government cannot pick and choose and segregate the names decided by the collegium.

“They must accept or reject the collegium recommendation as a whole. This is to avoid any incentive for judges to suck up to the government to be picked by them and also because by so doing government can alter the relative seniority of judges. Maintaining the integrity of the package of names recommended is therefore essential for judicial independence,” said an eminent jurist to National Herald.

The Government, he added, has a collegium recommendation for the appointment of both KM Joseph and Indu Malhotra. Under prevailing rules, they can accept or reject both names. They cannot pick and choose. “Therefore the government does not have a valid collegium recommendation for the appointment of just Indu Malhotra. Swearing her in would therefore be illegal,” he added.

For Indu Malhotra’s swearing in to be legal, the collegium will have to meet again and recommend only her name to the government, said a lawyer while concurring with this opinion.

Justice DY Chandrachud, according to reporters present in the court, said however that while it was against constitutional propriety to stop Indu Malhotra's appointment, the question whether there is "cherry-picking" of names and whether it hampers judicial independence needs to be considered in-depth

Earlier in the day, there was a huge backlash among senior Supreme Court lawyers at the Government notifying the appointment of Indu Malhotra while ignoring the name of Justice Joseph.

Indira Jaising appealed to Indu Malhotra, the first woman to be appointed judge directly from the bar, against taking oath on Friday. She also called upon lawyers to block the “illegal” appointment and tweeted, “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”.