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SC’s Existence Under Threat, Must Make Centre Act on judges’ Appointment: Justice Kurian Joseph writes to CJI

“It is the first time in the history of this court where nothing is known as to what has happened to a recommendation after three months,”-Justice Kurian Joseph

New Delhi: In yet another sign that senior Supreme Court judges were unhappy with the Modi government’s handling of issues concerning the judiciary, Justice Kurian Joseph has written to Chief Justice of India, Dipak Misra, urging him to act on non-appointment of judges by the Centre.

The “very life and existence” of the Supreme Court of India is under threat and “history will not pardon us” if the court doesn’t respond to the government’s unprecedented act of sitting on the collegium’s recommendation to elevate a judge and a senior advocate to the apex court, Justice Kurian Joseph has said in the letter, details of which were published in an Indian Express report today.

“It is the first time in the history of this court where nothing is known as to what has happened to a recommendation after three months,” Justice Kurian Joseph writes.

The Collegium had recommended Senior Advocate Indu Malhotra and Chief Justice of Uttarakhand High Court Justice K M Joseph to be elevated as Supreme Court judges on January 10. But the Law Ministry had sought legal opinion to issue the warrant of appointment only for Indu Malhotra, according to an earlier Indian Express report. It allegedly wanted to keep Justice K M Joseph’s case pending because, some believe, Justice K M Joseph in April 2016 had ruled against the Centre in the case of imposing President’s Rule in Uttarakhand.

The decision to elevate Justice Joseph to the Supreme Court had come even as a May 2016 Collegium recommendation to transfer him from Uttarakhand to the High Court of Andhra Pradesh and Telangana was still pending with the government, a January 11 Hindu report had informed.

In the letter sent to 22 other judges, Justice Joseph has urged the CJI to constitute a Bench of seven senior-most judges to take up the matter on the judicial side.

The Indian Express of April 12 says the letter mentions that the act of the executive in not clearing the names sends the message that if judges don’t toe the line of the government, they will suffer.

“The government owes a duty to take a call on the recommendation as soon as the same is sent from the Collegium. Failure to discharge their duty by sitting over on the recommendations of the Collegium doing nothing, in administrative law, is abuse of power,” Kurien has reportedly written in the letter to the CJI. “More than anything else, it sends a wrong message which is loud and clear to all Judges down the line not to cause any displeasure to the Executive lest they should suffer. Is this not a threat to the independence of the judiciary?”

Appealing for intervention by the CJI, Justice Joseph states that “if there is no normal delivery on completion of the gestation period, what is urgently done is a Caesarean section. Unless such a surgical intervention is made at an appropriate time, the child in the womb dies.”

The apex court currently has six judicial vacancies even as seven more judges, including Chief Justice Dipak Misra, are scheduled to retire in the course of 2018.

In an unprecedented move on January 12, four senior sitting judges of the Supreme Court, including Justice Kurian Joseph, had met the media and complained that the administration of the country’s top court was not in order. The judges had said there was an urgent need to preserve the judiciary system to save the democracy of the country.

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