Above: (L-R) Justice Madan B Lokur, Justice Deepak Gupta and Attorney General KK Venugopal

The standoff between the Judiciary and the Executive spilled out into the open on May 4. As a court full of people witnessed the tension that had built up over the recommendations of the collegium regarding appointment of judges, the judiciary seems to have found a new way out of the impasse.

It all harks back to the appointment of Justice KM Joseph, chief justice of the Uttarakhand High Court, to the Supreme Court being held back. While the collegium had recommended his name, the Department of Justice sent it back saying there were more senior judges who could be appointed. It is no secret that the Executive has been displeased with Justice Joseph for having cancelled President’s rule in Uttarakhand.

On May 4, Attorney General KK Venugopal asked a bench of Justices Madan B Lokur and Deepak Gupta why the collegium was sending just a “few names” when there were more than 40 vacancies in high courts? While he wanted numbers, he himself was not able to reply to the bench’s question on how many recommendations the centre was sitting on. This showed the collegium’s insistence on quality, while the government has been harping on the number of recommendations.

In his May 2 report on the inconclusive (deferred) meeting of the collegium, Chief Justice Dipak Misra had said that the collegium had met to consider the following agenda: “To reconsider the case of Mr Justice K M Joseph, Chief Justice Uttarakhand High Court… pursuant to letters dated 26th and 30th April from the Ministry of Law and Justice… and also to consider the names of judges from Calcutta, Rajasthan and Telangana and Andhra Pradesh High Courts for elevation as judges of the Supreme Court in view of the concept of fair representation.”

Sources told India Legal that this would possibly be the approach of the collegium in future too, except that Justice Joseph’s name this time might be preceded by four others, thereby affecting his seniority. Thus, the centre’s objection to Justice Joseph’s lack of seniority will be swept under the carpet.

The flip side is that Justice Joseph, while getting a seat in the Supreme Court, is unlikely to ever get enough seniority to be part of the collegium, not to speak of becoming chief justice. With Venugopal challenging the judiciary directly, saying that if the collegium was sending too few names, the onus was entirely on the judiciary and not the government, the rift was out in the open.

The issue being discussed related to vacancies for judges in the high courts of Manipur, Meghalaya and Tripura. The collegium’s recommendation for the appointment of Justices M Yaqoob Mir and Ramalingam Sudhakar as chief justices of the Meghalaya High Court and Manipur High Court, respectively, is yet to be cleared.

The bench had asked the AG: “Tell us, how many names (recommended by the Collegium) are pending with you.” When the AG replied: “I will have to find out,” the bench hit back saying: “When it comes to the government, you say ‘we will find out'”.

The AG, a veteran lawyer, threw back the gauntlet saying: “The collegium will have to see the broad picture and recommend more names. Some high courts have 40 vacancies and recommendation of the collegium is only for three. And the government is being told that we are tardy in filling up the vacancies. If there is no collegium recommendation, nothing can be done.”

The logjam continues but a breakthrough may be in the offing.

—India Legal Bureau