Justice Kurian Joseph - - the fifth senior most judge in the Supreme Court and a member of the collegium - - has told Chief Justice Dipak Misra that "history will not pardon us" for not upholding judicial independence in the face of government sitting on its recommendation for the appointment of top court's judges.
In an April 9 letter, Justice Joseph pointed out that over three months have passed since the Supreme Court collegium had recommended the elevation of Uttarakhand High Court Chief Justice K. M. Joseph and appointment of senior lawyer Indu Malhotra to the top court.
Pointing out that the "government owes a duty to take a call on the recommendation as soon as the same is sent by the collegium", Justice Joseph said: "Failure to discharge their duty by sitting on the recommendations of the collegium doing nothing, in administrative law, is abuse of power.
"The dignity, honour and respect of this institution is going down day by day since we are not able to take recommendations for appointment to this court to their logical conclusion within the normally accepted time, " he said.
He asked Chief Justice Misra to deal with the issue on the judicial side by constituting a bench of seven or more senior most judges of the top court.
The Executive (government) sitting over collegium recommendation and not saying anything, Justice Joseph said, sends a "wrong message which is loud and clear to all the judges down the line not to cause any displeasure to the Executive, lest they should suffer.
"It appears your personal efforts have not been fruitful.
"Is this not a threat to the independence of judiciary?"
Justice Joseph asked.
"I am more worried about the irreparable injury that is being caused by the wrong message sent to the judges down the line. "
The Supreme Court Judge said: "If there is no normal delivery on the completion of the gestation period, what is urgently done is caesarean section.
Unless such a surgical intervention is made at the appropriate time, the child in the womb dies.
". . .
in the interest of this great institution and independence of judiciary, for which all of us have fought so vigorously and tirelessly, to have an appropriate bench forthwith . . .
otherwise, I feel, history will not pardon us. "
Recalling the way the full court met when then Calcutta High Court Judge C. S. Karnan "challenged the dignity of the court", Justice Kurian said: "Is not the present a more grievous situation?"
"In Justice Karnan's case, it was threat to the dignity of the court; the present one is a threat to very life and the existence of the institution. "
He said the apex court was reeling under the work pressure by working with 24 judges as against a sanctioned strength of 31.
Recalling the practice of sending the names of judges for elevation to the top court in a phased manner as it may not poses any administrative or other difficulty, Justice Joseph pointed out that "we are not able to sit for the second phase since the fate of the first phase is not yet known. "
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