So, Congress finally withdrew the Supreme Court petition challenging Rajya Sabha Chairman Vice-President M Venkaiah Naidu’s rejection of an impeachment motion against Chief Justice Dipak Misra on Tuesday. Now comes the critical issue that will test the independence of the judiciary in this country: the appointment of K M Joseph to the Supreme Court. GoI has blocked his name on the broad grounds that such an appointment is contrary to the law laid down for the Supreme Court. Let’s examine whether this contention is right.

Law minister Ravi Shankar Prasad’s assertion that the blocking of Joseph’s appointment was not because the latter, as chief justice of Uttarakhand, had overturned the imposition of President’s rule by the central government in 2016 strains credulity. Joseph is a reputable judge, having put in almost four years as a chief justice.

He was recommended by the collegium on January 10. GoI sat on the file till April 26, asking the Supreme Court to reconsider, because Kerala — Joseph was appointed to the Kerala High Court in 2004 — is ‘adequately represented’ in the apex court. It also stated that a judge from the scheduled caste-scheduled tribe (SC-ST) community needed to be appointed, and that Joseph’s ‘all India seniority’ rank is 42. Implicit in this explanation was that he would otherwise be a worthy appointment.

The reasons stated by Prasad are factors to be taken into account, not reasons for non-appointment. This would be abundantly clear from a cumulative reading of the Supreme Court judgment of 1982, 1993, 1998 (a presidential reference) and 2016. For our present purposes, the 1998 reference judgment is important.

But first, regarding the opinion that Joseph is not ‘senior enough’. Can junior puisne judges (not chief justices) of a high court be appointed to the Supreme Court? From 1947 to 1992, high court puisne judges to the federal court or Supreme Court were almost 50% of the appointments to the apex court. Later, this dipped when in 1993, the Supreme Court’s Appointments Judgment made the apex court the initiator and ultimate arbiter on high court and Supreme Court appointments. But even after 1993, puisne hight court judges were appointed on merit.

The presidential reference of 1998 states that it is for judges of the collegium to judge the “comparative worth” based on “best information”, irrespective of whether the “prospective appointee’s high court has been transferred to the high court as… puisne judges… or Chief Justice”. The tests of “merit” and “outstanding merit” can only be judged by the collegium…”. And merit is the “predominant consideration”, not the government.

There is no doubt that ‘inter se seniority’ in the high court or ‘all India seniority’ has to be given “due weight” as a factor to be considered. But no more than as a factor. The law minister’s argument that the 41 before Joseph in ‘all India seniority’ will have priority over him is absurd. Even now, there are judges of less seniority than others who were appointed by this government.


As for Kerala being ‘over-represented’, Justice Kurian Joseph will be retiring soon. More than one judge have come from some states, and then none from some. At present, there are two judges from Karnataka. One ex-CJI recalls the emphasis on region, and not necessarily state.

The argument to make an SC-ST appointment is once again a factor, after merit has been considered. Judges have been appointed on merit and background. It is nobody’s case that SC-STs and OBCs be excluded. But soon there will be over six vacancies in the Supreme Court. Let us not confuse issues.

So, what we are left with is a farce. GoI can’t dictate who should be judges. That would be the death of the Constitution and of the rule of law. To point to Congress’s mistakes in pursuing the matter — and there were many — is now irrelevant. The independence of the judiciary cannot be bargained by GoI, which has been, on all counts, wrong on facts and law.

The Supreme Court collegium should return Joseph’s appointment to GoI. That would be constitutionally final. The real fear of the government is that Joseph, once appointed, will remain a Supreme Court judge till June 16, 2023. GoI does not want such an independent judge there for the next five years.