Govt has struck at the very heart of judicial freedom: former CJI RM Lodha

Four former Chief Justices of India and another four former judges of the Supreme Court have expressed their concern over the current standoff between the Supreme Court and the Government and have questioned how CJI Dipak Misra has let the government stonewall the Collegium’s recommendations.

In fact, the government’s “segregation” of the recommendations — to reject the nomination of Justice K M Joseph, the Chief Justice of Uttarakhand to the Supreme Court, and to accept the elevation of advocate Indu Malhotra “strikes at the very heart of the independence of the judiciary,” former Chief Justice of India Justice R M Lodha said in New Delhi on Thursday.

“What governments do by segregating recommendations, is (to) throw plans of the Collegium for seniority or ensuring a certain succession of future Chief Justices out of the window. By simply sitting over the file for weeks and then picking one and not the other, a whole new succession comes into play. This is interference in the judiciary, apart from, of course, rejecting names that the government doesn’t find favourable.”

Justice Lodha added: “The Chief Justice of India, in such a situation, should immediately call a meeting of the collegium and take up the matter with the government. If the reiteration must be done, it must happen immediately.” Significantly, he underlined: “The Chief Justice cannot sit over the file either, indefinitely, as can’t the government.”

The Memorandum of Procedure, which lays out the terms of engagement between the Centre and the judiciary, “as is established and operational” does not talk of segregation but the “settled convention is that the government cannot segregate the names,” Justice Lodha said.

Justice Lodha should know.

It was during his tenure as Chief Justice that the current government segregated one out of four recommendations of the Lodha-led collegium. Recalling events in the summer of 2014, Justice Lodha said: “The Law Ministry, without my knowledge or consent, when I was out of the country, segregated four recommendations of the collegium and had certain problems with (the proposal to elevate) Gopal Subramanium and did not appoint him. This was very wrong. I wrote to the Law Minister on June 30, immediately upon my return that it was wrong and should not happen again in the future, that is, be done with any Chief Justice, henceforth.”

Justice Lodha explained how by withdrawing his name, senior advocate Gopal Subramanium “deprived the collegium and the court to take the matter to its logical conclusion.” Justice Lodha said the current episode sends the wrong signal. “It is not about seniority,” and “never before has it been only interpreted in this way.” In an apparent reference to the ruling by Justice K M Joseph striking down the Centre’s imposition of President’s rule in Uttarakhand in 2016, Justice Lodha said: “It is very clear why his elevation is facing resistance.”

When contacted, another former Chief Justice of India under this government, Justice T S Thakur, termed the situation and the events following the segregation and return of Justice K M Joseph’s name as “unfortunate.” Besides Justice Lodha and Justice Thakur, The Indian Express contacted two former Chief Justices and four other former judges of the Supreme Court. Speaking on the condition that they not be named, they were unanimous in their “serious concern” over Chief Justice Dipak Misra not initiating any conversation with the Centre over the manner in which it had sat on the collegium’s recommendations for over three months.

Former Chief Justice of the Delhi High Court Justice A P Shah expressed his anxiety over the Thursday’s developments: “Bit by bit, the primacy of the collegium is being conceded…I am a bit surprised that the CJI said in open court that there was nothing wrong in the government returning the file. I doubt if he has consulted his colleagues in the collegium before making this statement.”

Said Justice Shah: “Clearly the reason (Justice Joseph’s file was rejected) is his judgment against the Centre in 2016. The points raised about his so-called seniority are not relevant and he is the most suitable person for the job. As far as representation from Kerala is concerned, Justice Kurian Joseph, the only other Kerala Judge will retire in a few months.”

Justice Shah criticised the CJI for “not taking up relevant issues with the government appropriately, nor insisting that the MoP be expedited.” He said that despite the “transgression demonstrated by the Executive, the Chief Justice is not even calling a meeting and is largely responsible for allowing the transgression.”