Justice Joseph’s elevation to Supreme Court: What if the collegium can’t reach a unanimous decision?

The Supreme Court collegium, consisting of five senior-most judges of the Supreme Court, including Chief Justice of India Dipak Misra, is likely to meet on Wednesday to discuss the Centre’s decision not to accept the elevation of Uttarakhand Chief Justice KM Joseph.

In April, the Union government split a January 12 recommendation of the collegium to elevate both Justice Indu Malhotra and Justice KM Joseph to the Supreme Court. It accepted Malhotra’s case and she was sworn in last week. But on Justice Joseph, the Union government said there were many others in different High Courts who were senior to him and so it was not proper to supersede others to give him the position. It also invoked the diversity argument, claiming that the Kerala High Court, the parent High Court of Joseph, was not big enough to have two judges in the Supreme Court. Justice Kurian Joseph is already in the Supreme Court and is part of the collegium.

On Monday, Justice Kurian Joseph suggested in an interview to Indian Express that the collegium is likely to reiterate the recommendation of elevation of Justice Joseph when it discusses the matter in the next sitting.

But this is not so straightforward. While news reports have suggested that a reiteration by the collegium would be binding on the government, the question arises as to what the outcome would be if the reiteration is not unanimous. For example, what if the Chief Justice of India takes a differing opinion from those of the other four judges of the collegium? A reading of the Supreme Court judgement that governs judicial appointments suggest that lack of unanimity, especially with the CJI dissenting, could derail the elevation even if the other four judges recommend it.

Judicial appointments

Over the years, three important judgements have governed judicial appointments in India. In 1982, the Supreme Court, in SP Gupta vs Union of India, upheld the primacy of the Central government in appointing judges to the higher judiciary. The court held that the government was not bound by the recommendation of the chief justice and that the Constitution only envisaged consultation with the chief justice and not his concurrence.

In 1993, this judgement was overturned by a nine-member bench in Supreme Court Advocates on Record Association vs Union of India. Here, the court entrenched the collegium system, where the chief justice in the context of judicial appointments would mean the plurality of the collegium. At that point, the collegium consisted of the chief justice and two senior-most judges of the court. This order said the decision of the collegium was binding on the government, especially if the elevation is reiterated after the Centre raises questions.

In 1998, responding to a presidential reference, the Supreme Court reiterated the binding nature of the collegium recommendation. The collegium was expanded to a five-judge body. In essence, this asserted the primacy of the chief justice, in the plurality of the collegium, in judicial appointments.

However, what happens when there is no unanimity in reiterating an elevation? On this, questions remain.

Appointment and non-appointment

In the 1998 judgement, the Supreme Court envisaged a situation where the chief justice could bat for an elevation and the other judges in the collegium may want the elevation rejected.

In such a scenario, the court held that the government could go with the opinion of the other judges and not elevate the person. The rationale here was that the question of primacy comes into play only in appointment and not in non-appointment. The court argued that not appointing a person is better than appointing an unsuitable person to such an important job. The judgement, reasserting the 1993 order, said:

“If the Chief Justice of India does not find it necessary to withdraw his recommendation even thereafter [after Centre sends it back for reconsideration], but the other Judges of the Supreme Court who have been consulted in the matter are of the view that it ought to be withdrawn, the non-appointment of that person for reasons to be recorded, may be permissible in the public interest.” 

While this is the case for non-appointment, the language differs when it comes to reiterating an appointment. Here, the court said:

“However, if after due consideration of the reasons disclosed to the Chief Justice of India, that recommendation is reiterated by the Chief Justice of India with the unanimous agreement of the Judges of the Supreme Court consulted in the matter, with reasons for not withdrawing the recommendation, then that appointment as a matter of healthy convention ought to be made” 

To simplify, the decision to stop the elevation may not be unanimous. But a decision to reiterate a recommendation of appointing a particular person as the judge should be unanimous.

It becomes an even bigger problem if the person who dissents is the chief justice. Will the majority opinion prevail if the chief justice vetoes the opinion of the other four judges even if all the four hold the same opinion to reiterate the elevation?

Former Solicitor General of India Mohan Parasaran said if the chief justice vetoes, it “would be disastrous”.

“It is very clear from the language of the judgement that a decision to reiterate an appointment has to be unanimous,” he said. If it is not, then the Union government may cite this and reject when the opinion of the collegium is recorded and sent. Parasaran said it was bigger problem if the person dissenting is the chief justice as the question of primacy of his view would come into play.

However, K Chandru, former judge of the Madras High Court, differed in his reading of the order. “What applies to non-appointment should apply to appointment as well,” he said. “The view of the majority should prevail.”

The question before the collegium would be whether the reasons cited by the union government to reject Joseph’s elevation are valid.