Above: (Left) Senior Advocate Indu Malhotra and Justice K M Joseph
While the appointment of one judge to the Supreme Court and rejection of another by the government has created heartburn with a section of the Collegium and also among some senior advocates, Chief Justice Dipak Misra on Thursday (April 26) said that it was not wrong for the Union law ministry to send back for reconsideration one name among the two sent to it by the Collegium.
The ministry had cleared the name of senior advocate Indu Malhotra, while sending back the name of Uttarakhand Chief Justice K M Joseph. Senior advocate Indira Jaising had submitted to the CJI a petition by 100 advocates, opposing this rejection by the ministry, claiming that democracy is in peril. While she made this submission – in which she had said that the government has to accept both recommendations, or neither will be sworn in – she had requested a quick listing for tomorrow which the CJI refused.
The CJI clarified that the swearing-in ceremony of Indu Malhotra will be held as scheduled (tomorrow), because the warrant had already been sent to President Ram Nath Kovind for his signature (which he did sign: see letter below) and could not be recalled.
The CJI also said that to demand to ban a judge from taking oath is absolutely wrong. “We are surprised that you made such a demand,” he said. “Do you know that the other name is going to send the government to us again for consideration? If that happens then the Collegium will look into it.”
As it transpired, the other name – of Justice Joseph – was sent back by the ministry with a long letter (see below for letter) which basically asked why Justice Joseph was selected when he was only 42 on the list and as per seniority of all chief justices he is only 12th?
The CJI said: “Sometimes 30 names are recommended for the High Courts and while 22 are made judges, 8 names are sent back to the Collegium. It cannot be that 30 of the 30 names have been approved or disapproved.”
The CJI also said: “The Supreme Court will file the petition (of Jaising) first, then see again. At the moment, the demand (for immediate listing) is turned down.”
The CJI also said: “One from within the bar is becoming a judge, and some people of the bar are protesting. We are surprised.”
The Ministry’s Letter
The ministry’s letter to the CJI made some important observations regarding the rejection of the name of Justice Joseph.
It said:
“With regard to the recommendation relating to Justice K M Joseph, the proposal has been examined and the following observations are made:
a) In the All India High Court Judges’ Seniority List Justice K M Joseph is placed at serial No. 42. There are presently 11 chief justices of various high courts who are senior to him in All India High Court Judges’ Seniority Listl.
b) The high courts, namely Calcutta, Chattisgarh, Gujarat, Rajasthan, Jharkhand, Jammu and Kashmir, Uttarakhand and some smaller high courts namely Sikkim, Manipur, Meghalaya are not represented in the Supreme Court at present.
c) Justice K M Joseph’s parent high court is the Kerala High Court. If he is to be appointed as judge of the Supreme Court, the Kerala High Court – a comparatively small high court – would have two judges from the same parent high court in the Supreme Court.
d) It may also be relevant to mention here that there is no representation of Scheduled caste/Scheduled tribe Communities in the Supreme Court since long. 
(Important note: The pagination of the letter is wrong. In that sequence, the page 4 [which is at 5 from starting should] have been page 3)
—India Legal Bureau