Vikas Singh, president of the Supreme Court Bar Association (SCBA), terms the attitude of the government in the controversy surrounding appointments of judges in the Supreme Court “callous” and describes it as “hitting at the independence of the judiciary”, clarifying that he was speaking in an individual capacity, and that his views need not necessarily reflect those of the SCBA. Excerpts from an interview to Frontline .
What is your position on the government sending back for reconsideration the nomination of Justice K.M. Joseph to the collegium?
The government has the right to send back a proposed name by the collegium. That is undisputed; that is even as per a Supreme Court judgment. But the government should have done so on grounds which are not known to the collegium. It should be something new. It should be something which was not in the papers that were put up when the collegium took a decision. The government should take a decision quickly; they can’t wait for three and a half months and tell the Supreme Court what it already knew.
So if Justice K.M. Joseph was 42 in the waiting-list seniority, it was known to the Supreme Court. The collegium knows the number of Kerala High Court judges who are in the Supreme Court. These are not issues that are not in the consideration of the Supreme Court. So sending back a name on an issue which is known to the Supreme Court is not the right way forward. And that, too, after a long delay; because this kind of a delay shows how callous they are towards appointments to the highest judiciary in the country.
If this is something which was known to the government from day one, they could have sent back the file within a week for reconsideration. By that delay, they have been able to split the names. Because if the government were to again send it back to them, they would take another three months to decide so Indu Malhotra also would be stuck in the process. So that is the trick which the government has played which is unfair and it is hitting at the independence of the judiciary.
Why do you think the government was callous and hitting at the independence of the judiciary?
By delaying and splitting the names in the process, suppose the collegium were to resend the name now, then obviously there would be a seniority issue. Because Indu Malhotra would have, in any case, taken time; being a Bar member, they have to take that I.B. [Intelligence Bureau] clearance. The government has played a trick by not taking a decision for three and a half months and then issuing the warrant in one case and not in the other. So even if the collegium were to propose K.M. Joseph’s name again, he would still be junior to Indu Malhotra. The government is hitting at the independence of the judiciary by this callousness. Suppose the President delays the notification of the Cabinet for three months? The government is doing something like that. I can understand if you have some I.B. report or if you have suddenly come to know of some anti-national activity [committed by the judge].
What interest of the government gets served by acting this way?
It is just to have control [over the higher judiciary/Supreme Court]. The government wants people to toe its line.
In a letter to Chief Justice of India Dipak Misra written recently, Justice Kurian Joseph reportedly used a very stark phrase, that “the very life and existence” of the Supreme Court was under threat. How do you see this statement?
That is an exaggeration. But Justice Kurian Joseph saying that the collegium will recommend Justice K.M. Joseph’s name yet again to the government is also not correct. He shouldn’t have gone to the press. This is also how you lower the dignity of the institution. Whatever you have to say, you say it in the collegium.
What do you think about the assertions and arguments made by Law Minister Ravi Shankar Prasad in his communication to the Chief Justice of India while sending back the name of Justice K.M. Joseph for reconsideration?
Assertions made by the Law Minister are already in the public domain and the collegium also knows about them. The arguments made are not convincing because if you look at the history of the appointments made to the Supreme Court in the recent past, you will find bigger aberrations than that. There was a time when there were three or four judges in the Supreme Court from the Patna High Court. Patna High Court is a very small High Court. It is smaller than Kerala [High Court]. So his arguments do not pass muster. Whatever the Supreme Court does is the law of the land under Article 141. So you should have the best people there, based on merit. You should not compromise on merit. There should never be criteria such as regional representation for the Supreme Court.
How can the tensions between the Supreme Court and the government be resolved?
The problem is that it is a turf war where nobody is looking at selecting the best candidates. Neither the collegium nor the government is interested in selecting the best candidate. I feel that the collegium [system] is the best way [for appointing judges], but it is not doing its job properly. The solution lies in reinventing themselves. I had written a letter to the then Chief Justice of India, Justice R.M. Lodha, about this.
What is your opinion about the leadership of the Supreme Court by the current CJI Dipak Misra?
CJI Dipak Misra is following the legacy, he is not doing anything different. The collegium [which is headed by Justice Misra] needs to reinvent itself.
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