We may ask government to reconsider KM Joseph's name: CJI Misra

The Supreme Court has brushed aside concerns of a section of the bar over the government returning the name of Uttarakhand chief justice KM Joseph, recommended by the collegium for promotion to the top court. It refused to stay a presidential warrant clearing the name of senior advocate Indu Malhotra, recommended along with Joseph, avoiding a confrontation with government at least for now. Malhotra will be sworn in on Friday.

Dealing with a petition filed on behalf of 100 members of the SC Bar Association, Chief Justice of India Dipak Misra said that the SC collegium would take a call on Justice Joseph’s case after perusing the government’s objections to his elevation. “We may send the name back to the government for reconsideration. The matter will then end,” the CJI said.

The petition filed by senior advocate Indira Jaising alleged that by sending back Justice Joseph’s name, the Centre was interfering in the functioning of the judiciary. She urged the bench to stay the presidential warrant appointing Malhotra on the grounds that the government cannot pick from a file containing two names.


“There’s a perception that certain judgments were not palatable to the executive. That names were rejected because of certain judgments. Oversight of the court is required,” she said. She specifically referred to justice Joseph’s judgment quashing President’s rule in Uttarakhand.

The two names for elevation as SC judges were recommended by the collegium at the same time. Malhotra’s was cleared, Joseph’s was sent back for the collegium for reconsideration. “This bifurcation of the two names is unacceptable,” Jaising said. The collegium’s recommendation to transfer Joseph from Uttarakhand to the Andhra HC too was also not cleared by the Modi government in 2016.

The CJI was, however, aghast at the suggestion that the appointment to a constitutional post be stayed. “Stay a presidential warrant? That’s unthinkable, unimaginable. Never, never heard of,” the CJI said. The other members of the bench that heard the petition were Justices AM Khanwilkar and DY Chandrachud. Justice Chandrachud cited his and Justice Khanwilkar’s experience as HC chief justices to claim that such a principle of “all or none” if accepted would create havoc in big high courts.