Law minister Ravi Shankar Prasad’s weird logic to stall Justice Joseph

Should the Law Minister have released a privileged communication to the Chief Justice of India to the media?

The week began with the Rajya Sabha Chairman Venkaiah Naidu rejecting a motion to impeach the CJI on Monday, citing the ‘publicity’ given to the motion as one of the reasons.

On Thursday, barely three days later, Union Law Minister Ravi Shankar Prasad distributed a copy of the letter to the CJI from the Government, explaining why it found elevating the Chief Justice of Uttarakhand High Court KM Joseph to the Supreme Court unacceptable.

The letter distributed to the media of course did not bear any signature and was printed on plain paper as is generally done while leaking official documents. In the letter the Government made the following points:

• Justice KM Joseph is 42nd in the All India Seniority List of judges
• As many as 11 Chief Justices of High Courts are senior to Justice Joseph
• The Supreme Court currently has no representation from the high courts of Calcutta, Chhattisgarh, Rajasthan, Jharkhand, Sikkim, Manipur, Jammu & Kashmir and, ironically, Uttarakhand
• There is already a judge from the Kerala High Court, Justice Kurian Joseph (due to retire in November), in the Supreme Court. If elevated, the number of judges from Kerala in the apex court will become two
• Kerala is over-represented in the high courts with three HC Chief Justices in Uttarakhand, Chhattisgarh and Kerala
• Finally, the Supreme Court currently has no judge belonging to Scheduled Castes or Scheduled Tribes
• It is worth recalling that the Government has been opposing Justice Joseph’s elevation since 2016 itself; so hostile has the Government been that it sat over a recommendation transferring him to the Andhra Pradesh High Court on health grounds

"The proposal for the reconsideration of the case of KM Joseph has the approval of President and Prime Minister," said the letter sent to Chief Justice Dipak Misra by Ravi Shankar Prasad. The letter also communicated the President's nod for the appointment of senior lawyer Indu Malhotra as a judge of the top court.

The Law Minister did not explain why it took his ministry three months to respond to the recommendation made by the collegium in January. Nor did he say whether he had called on the CJI and apprised him of the Government’s reservations on elevating Justice Joseph.

The legal fraternity was quick to pick holes. A senior advocate pointed out that in the Supreme Court there are at least four judges from the Bombay High Court and three from Delhi. “Under what law can’t there be two from Kerala?” Justice Kurian Joseph in any case is due to retire in November this year.

The All India Seniority List of judges has never been a benchmark for elevating judges to the Supreme Court, the lawyers pointed out. The Supreme Court collegium had clearly stated that they found Justice Joseph to be the most deserving.

Talking of seniority, Justice Joseph became a High Court judge in 2004, four years before Justice PC Pant. But while Justice Pant was elevated to the Supreme Court in 2014 and has since retired, Justice Joseph is still a Chief Justice in the High Court.