Indu Malhotra was sworn in as a Supreme Court judge on Friday amid controversy surrounding the recommendation of her and the Chief Justice Of Uttarakhand, KM Joseph.
Law minister Ravi Shankar Prasad confirmed Malhotra’s appointment on Thursday, three months after the collegium, which appoints judges to the nation’s constitutional courts, had recommended her along with Justice Joseph.
However, the ruling Bharatiya Janata Party has still not approved Joseph’s appointment, attracting criticism from the legal community and opposition parties such as Congress and the Communist Party of India (Marxist).
In a letter to Chief Justice of India Dipak Misra, the law ministry stated that there were 11 High Court chief justices senior to Joseph and that none of them had representations in the Supreme Court.
The government also said, “such ‘segregation’ of proposals – different decisions on names recommended by the collegium simultaneously – had been done in many cases earlier.”
In 2016, Joseph headed a three-judge bench in the Uttarakhand High Court and dismissed the government’s decision to impose President’s rule in the state. Since then his transfer to the Andhra Pradesh High Court and elevation to the Supreme Court has been stalled by the government.
The former Chief Justice of India, Justice KM Lodha, told The Indian Express that the government’s “segregation” of the recommendations – to reject the nomination of Justice K M Joseph, the Chief Justice of Uttarakhand to the Supreme Court, and to accept the elevation of advocate Indu Malhotra – “strikes at the very heart of the independence of the judiciary.”
He added: “What governments do by segregating recommendations is (to) throw plans of the collegium for seniority or ensuring a certain succession of future chief justices out of the window. By simply sitting over the file for weeks and then picking one and not the other, a whole new succession comes into play. This is interference in the judiciary, apart from, of course, rejecting names that the government doesn’t find favorable.”
According to the Memorandum of Procedure, which states the terms of engagement between the Centre and the judiciary, there is no mention of segregation and so the government cannot segregate names.
However, in the letter, the government said “such ‘segregation’ of proposals – different decisions on names recommended by the collegium simultaneously – had been done in many cases earlier.”
Prominent senior lawyer Indra Jaisingh appealed to the Chief Justice of India on Thursday, asking him not to swear in Malhotra until the government clears Joseph’s appointment. However, Misra said he will not stay her appointment as it was “unthinkable, unimaginable and inconceivable,” News18 reported.
However, if the collegium stands by its decision to elevate Joseph’s appointment, the government will have to issue a warrant sanctioning it.
For now, Malhotra becomes the first woman lawyer to be appointed directly as a Supreme Court judge. She is also the seventh woman judge in the top court’s history.