A day after the Supreme Court Collegium deferred its decision on whether or not to reiterate Justice KM Joseph’s name for elevation to the apex court, we remain in the dark about what happened at their meeting and why the judges decided to delay their decision.
The Collegium has provided no reasons for the deferral in their notice about the meeting on Wednesday, 2 May, and different media houses have put forward conflicting, even contradictory, accounts about what happened, each based on confidential sources.
The meeting had been called in response to the objections raised by the Union Government to the appointment of Justice KM Joseph as a judge of the Supreme Court. On 26 April, the Centre had written to Chief Justice of India, Dipak Misra, asking him and the Collegium to reconsider their recommendation to elevate Justice KM Joseph, citing the seniority of other judges and under-representation of other states as reasons.
Under the law on appointment of judges, if the government disagrees with a recommendation of the Collegium, they can ask for it to be reconsidered. However, if the Collegium reiterates the recommendation, the government cannot raise any further objections.
A large number of legal experts and judges, including former CJI RM Lodha and former Delhi HC Chief Justice AP Shah, had suggested that the Collegium should have immediately reiterated Justice KM Joseph’s name. So why didn’t the Collegium do that on Wednesday? Here are the different versions.
Version 1: Lack of Unanimity
According to Apurva Vishwanath and Maneesh Chhibber of The Print, the reason why no decision was made was because there was a “lack of unanimity”. Justices Chelameswar, Gogoi, Lokur and Kurian Joseph (the four judges who held the unprecedented press conference in January) agreed that the name should be reiterated, but CJI Misra did not.
The agenda for the meeting, as specified in the Collegium notice, was also to “consider the names of Judges from Calcutta, Rajasthan, and Telangana & Andhra Pradesh High Courts for elevation as Judges of the Supreme Court, in view of the concept of fair representation.”
According to The Print’s sources, the four judges wanted to reiterate Justice KM Joseph’s name and only take up the issue of ensuring regional representation after this was confirmed. However, the Chief Justice wanted to discuss recommending three other judges’ names at the same time.
According to the Third Judges Case, which sets out the law on appointment of judges, a reiteration of a name by the Collegium needs to be unanimous. Since this was not achieved, the decision was deferred till further deliberations. The Print’s sources believe that the next meeting could take place on Friday, 4 May.
Version 2: Three Judges Needed Time to Respond to Chief Justice Misra’s Suggestion
Hindustan Times ran a story by Bhadra Sinha and Ashok Bagriya which was similar to that of The Print, but differed on some key points. According to them, the meeting lasted 50 minutes, during which Chief Justice Dipak Misra suggested that they consider judges from other High Courts while reviewing their decision to elevate Justice Joseph.
The CJI had reportedly recommended considering Justice Indira Banerjee (originally from the Calcutta High Court), Justice R Subhash Reddy (originally from the Telangana High Court) and Justice Dinesh Maheshwari (originally from the Rajasthan High Court) at this time. These are the same names noted by The Print.
However, the Hindustan Times’ sources said that three of the other four senior judges had not made a decision on whether to reiterate Justice Joseph’s name before considering other names, and so asked for more time — leading to the deferral.
Another new piece of information in this version is that at the meeting, the four senior judges were made aware of a second letter from Law Minister Ravi Shankar Prasad to the CJI dated 30 April, in which further objections to Justice KM Joseph’s elevation were raised. Till then, only the letter of 26 April was known, which had been subject to intense scrutiny.
According to this version, the Collegium will meet again next week.
Version 3: No Disagreement, Time Taken for “Deeper Deliberation”
Dhananjay Mahapatra in the Times of India went with a very different version of the events at the Collegium’s meeting. According to his sources, the judges had a pleasant, 15-minute meeting, and unanimously agreed that they needed more time to discuss the issues in the agenda.
According to TOI, Justice KM Joseph wasn’t even discussed at all, with the discussions focused on the pending Memorandum of Procedure for appointment of judges, and how to work with the government to expedite the process. One of their “senior” sources is quoted as saying:
“There was no question of anyone agreeing or disagreeing on any particular name as no names were discussed.”
TOI’s sources also indicate that the Collegium will meet next week to discuss the issues again.
Version 4: Taking Time to Formulate Response to the Government
NDTV’s A Vaidyanathan also reported a different version, based on their own confidential sources. According to the news channel, the Collegium intends to firmly reiterate Justice KM Joseph’s name, and the reason for not doing so on Wednesday was because they want to send a detailed response to the government’s letters objecting to his elevation.
Like Version 2, this version indicates that the meeting lasted for 50 minutes. The agenda included considering names of judges from other High Courts in response to the government’s concerns regarding fair representation, and also with a view to fill the numerous vacancies in the Supreme Court (currently 6, and with another 6 retirements set for this year).
According to NDTV, the Collegium will meet again either later this week or early next week, depending on how long it takes to finalise their arguments against the government’s letters.
Version 5: No Discussion During Meeting
This version does, however, include more detail about the law minister’s second letter to the CJI dated 30 April, which may mean that the judges wanted to consider what this letter said — remember that according to Hindustan Times, this was the first time the other judges of the Collegium had been informed of this second letter.
While the first letter tried to rely on legal precedent to justify its objections to Justice KM Joseph’s elevation, the second letter reportedly tries to refer to the draft Memorandum of Procedure (MoP) sent by the Collegium to the government in March 2017, to support its reasons. The government is claiming that in paragraph 5 of this draft MoP, the Collegium itself stressed the importance of regional representation and seniority subject to merit, when deciding whether to appoint judges to the Supreme Court.
The Indian Express’ sources expect the Collegium to hold another meeting early next week.
Why is There So Much Confusion?
It is a little surprising that there is no clarity whatsoever on what exactly happened at the meeting. While it is not out of the ordinary for different legal reporters to get varying information, it is quite extraordinary that the versions at play here have so many differences, with some of them being diametrically opposite to each other.
Perhaps this is a reflection of the divisions that currently exist within the Supreme Court itself.
After all, the four senior judges had raised concerns about CJI Dipak Misra’s administration of the court, including allocation of sensitive cases. They have even written subsequent letters that have become public or made public statements, urging him to take action against government interference, and to reiterate the name of Justice Joseph (when the government had not responded to the original recommendation).
In November 2017, the CJI courted controversy by recalling an order passed by Justice Chelameswar for hearing a medical bribery case which involved allegations against the CJI himself. An impeachment motion against the CJI – sought to be introduced by Opposition MPs – raised issues relating to his conduct in this particular case, as well as other charges of impropriety.
In such circumstances, it would not be surprising that sources close to different senior judges might be giving out different versions, and the versions carried by different media houses depend on which sources their reporters are close to.
This does not, however, account for the discrepancies about how long the meeting lasted, and whether any discussions took place at all. It is a matter of some urgency, then, that the Collegium release some sort of official statement clarifying the situation, though it is likely that we will only get this kind of clarity after their next meeting.