As senior advocate Indu Malhotra's appointment to the Supreme Court was cleared by the Centre, the focus was on Justice K.M. Joseph, whose name had been recommended along with Indu Malhotra to be appointed as judge of the apex court. The file regarding Justice Joseph's elevation to the top court has been sent back by the Narendra Modi government to the Supreme Court collegium.
The collegium had, on January 10, 2018, recommended Malhotra and Joseph to be appointed as Supreme Court judges. However, the Centre did not act on the recommendations for close to four months. Modi government's critics attacked it for allegedly being vindictive towards Justice Joseph, who is the Chief Justice of Uttarakhand High Court. It is said Justice Joseph's appointment to the Supreme Court was not cleared since he had struck down President's rule in Uttarakhand, allowing a petition by former chief minister Harish Rawat of the Congress.
The delay in clearing Indu Malhotra's name was seen in terms of the difficulties of de-coupling the two recommendations. Clearing the file pertaining to Indu Malhotra's appointment, while keeping the recommendation regarding Justice Joseph pending, would have led to questions about why his name was not being cleared. Sending Justice Joseph's file back to the collegium would have led to a situation wherein the panel of apex court judges could have reiterated the recommendation, and then it would have been binding on the government to clear it. Justice Joseph's name had, in 2016, been recommended by the collegium for transfer to the Andhra Pradesh and Telangana High Court. That file was never cleared.
However, the Centre has now bitten the bullet and sent back the file regarding the recommendation of Joseph's name to the collegium, setting the stage for the next level in the tussle between the government and the judiciary.
The government has sent back Justice Joseph's name, refusing to clear his appointment based on the argument that there is already adequate representation from the Kerala High Court in the Supreme Court and among Chief Justices in the high courts. Union Law Minister Ravi Shankar Prasad, in a letter to Chief Justice of India Dipak Misra, also wrote that Justice Joseph's elevation to the Supreme Court would breach the norm of seniority amongst judges of the high courts.
There has been a sense of outrage in the higher judiciary with regard to the government sitting on recommendations of the collegium, and the instances of Malhotra and Joseph were often cited. Misra's colleagues in the collegium have taken up the issue of the government biding its time over proposals for appointment to the higher courts.
Criticising the government for returning to the collegium the file pertaining to Joseph, the Congress said the Modi regime was threatening the independence of judiciary by not clearing appointments to the high courts and the Supreme Court.
“The government sits on recommendations of names that it feels are not suited to its interests. It wants to pack the high courts with its own people,” said senior Congress leader Kapil Sibal. “If the judiciary does not speak in one voice and does not stand up to protect its autonomy, democracy is in danger,” he said.