Senior advocate Indu Malhotra was sworn in as a judge of the Supreme Court on Friday, but the government continues to be silent on the Supreme Court collegium’s recommendation to elevate Uttarakhand Chief Justice KM Joseph to the top court. Justices Malhotra and Joseph were jointly recommended by the collegium. The law ministry headed by Ravi Shankar Prasad asked the Collegium to reconsider their choice of Justice Joseph. They had pointed towards ‘seniority’ and ‘regional diversity’ as grounds for his rejection. Former Attorney General Soli Sorabjee, however, believes the most important things to be considered are integrity and merit and all other considerations are irrelevant. Seniority, he says, is an irrelevant factor.
Soli Sorabjee spoke with National Herald’s Ashlin Mathew. Excerpts from the interview:
What do you think of the government’s decision to reject Justice KM Joseph’s elevation to the Supreme Court?
The government has not rejected it; they said they have some misgivings about it including seniority; none of which are valid. The government should not have sat on the proposal for so long, since January. That is wrong. I will not go into the reasons of the rejection. The reasons are irrelevant. It is for the Collegium to decide if it wants to accept those reasons or not. If the Collegium does not accept those reasons and reiterates its decision to appoint Justice KM Joseph, then it is binding on the government.
The Collegium, which includes the Chief Justice of India, should look into the reasons given by the government for sitting on the proposal and what their misgivings are. After considering them and finding no substance in them, they should reiterate the original proposal to bring Joseph to the Supreme Court and then it is binding on the government. There is no question about it. That is the law; not doing so is unconstitutional.
What do you think the Chief Justice of India and the Collegium should do now?
The most important things to be considered are integrity and merit, all other considerations are immaterial. Seniority is an irrelevant factor. The basic point is that it is not for the government to decide. We do not want ‘sarkaari’ judges, we want judges who are independent and capable. The people who are the best to decide that is the Collegium. If the Collegium again reiterates its decision to get him to the Supreme Court, the government has to clear Joseph’s appointment.
To my mind, what is relevant is what the Collegium does. Now, the way forward is very clear. The CJI, in consultation with his colleagues in the Collegium, should consider it soon. If they find no basis for the government’s rejection, they should send it back.
Is this a direct interference of the executive in the judiciary?
The government has a voice, in the sense that they can articulate their reservations and doubts about a certain judge to the Collegium, but not to veto the appointment. The executive can say or do whatever, but ultimately it is the Collegium which prevails. To that extent, there is no interference. Even if the government wants to interfere, it can’t succeed, because the Collegium decides.