Supreme Court dismisses plea to stay Malhotra’s appointment

New Delhi: Observing that such a prayer is unimaginable, the Supreme Court on Thursday refused to stay the presidential warrant appointing senior advocate Indu Malhotra as a judge of the apex court. Ms Malhotra is likely to take oath of office on Friday.

The top court, while rejecting a petition to stall Ms Malhotra’s appointment, observed that the Centre was well within its right to return the collegium’s recommendation to elevate Uttarakhand chief justice K.M. Joseph as a judge of the apex court.

The collegium’s recommendations for appointment of Ms Malhotra and Justice Joseph as Supreme Court judges were sent at the same time in January this year but the Centre has rejected the proposal on Justice Joseph’s elevation while accepting Ms Malhotra’s appointment.

During the hearing on the petition opposing Ms Malhotra’s appointment, Chief Justice of India Dipak Misra, told senior counsel Indira Jaising, “Your prayer to stay the warrant of Ms Indu Malhotra is unthinkable, unimaginable and inconceivable. It is never heard off in this court.”

“When a Member of your bar has been appointed as a judge of this court, we are most surprised to hear that the appointment should be stayed,” said CJI Misra, presiding over a three-judge bench.

“Constitutional propriety demands that the warrant of appointment of Indu Malhotra shall be implemented,” said CJI Misra, expressing anguish that lawyers are filing petition to stall the swearing in of a fellow senior advocate. Ms Jaising said that 100 lawyers of the Supreme Court have filed this petition challenging the decision of the government in accepting one proposal (that of Ms Malho-tra) and rejecting the proposal on Justice Joseph.

The CJI asked, “What kind or argument is this. How can we put on hold the other appointment just because one name has not been cleared?”

Ms Jaising asked for staying the warrant of appointment issued in favour of Ms Malhotra until the concerns were addressed. Senior advocates C.U. Singh and Vikas Singh, representing the Supreme Court Bar Assoc-iation, joined Ms Jaising and contended that the “unilateral” segregation of Justice Joseph’s name is a “direct attack” on the independence of the judiciary and the government could not do so.    

The CJI said, “Nobody perhaps understands the gravity of the situation… the collegium will take an objective view as and when the government acts. How do you know what the government has done? It is premature. Let us see what they have done. If they have sent back a name for reconsideration, they are well within their rights to do so under the Constitution Bench judgments of 1993 and 1998 and the NJAC judgment. We will now examine it appropriately at the appropriate level and deal with it.”

Ms Jaising said that if the setting aside of the President’s rule in Uttarakhand by Justice Joseph in 2016 was not palatable to the executive and if this is the reason for not accepting his elevation, then it is a very serious issue. Justices A.M. Khanwilkar and D.Y. Chandr-achud told her that if this strict principle of no segregation was applied, app-ointment process would be halted for the high courts.