Centre clears appointment of Indu Malhotra as SC judge, decision unclear on Uttarakhand CJ Joseph

The Centre cleared senior advocate Indu Malhotra’s name for elevation as a Supreme Court judge, making her the latest entrant on the Bench. Sources have revealed that Malhotra, who was recommended for elevation along with Uttarakhand Chief Justice KM Joseph, will take her oath as an apex court judge on Friday. 

Malhotra, is the first woman from the bar to be directly elevated to the Bench. 

The Executive, however, has not yet elevated CJ Joseph. 

Welcoming the centre's move, senior advocate Vikas Singh, President of the Supreme Court Bar Association said, "Malhotra has all the qualities of a Judge. Knowledgeable and with human values."

The apex court collegium - comprising of the five senior-most judges of the Supreme Court, had recommended Malhotra and Chief Justice Joseph for elevation earlier this year in January. However, Malhotra’s recommendation was caught in the crossfire of politics as the Centre appeared to be disinclined to elevate Chief Justice Joseph. 

The Centre’s reluctance to accept the collegium’s decision was one of the major reasons for the crisis that rocked the corridors of the apex court. Shortly after the collegium sent Malhotra’s and CJ Joseph’s name for elevation – on January 10, four judges from the collegium – the senior-most judges of the Supreme Court after Chief Justice of India Dipak Misra, held a press conference to bare their anguish over CJI Misra’s alleged breach of institutional integrity, and “to save the democracy”.

Infact, merely a little over a fortnight ago, Justice Kurian Joseph, one of the five judges in the collegium, wrote a strongly worded appeal to CJI Misra imploring him to fight for the integrity of the institution on the three-month mark since the Collegium recommended Malhotra and Chief Justice Joseph for elevation to the top court.

Justice Joseph, the fourth senior most judge after CJI Misra, had pointed out that the Executive has never sat this long on the recommendation put forth by the Collegium. “Government owes a duty to take a call on the recommendation as soon as the same is sent from the Collegium,” Justice Joseph had said in his letter. 

“Failure to discharge their duty by sitting over on the recommendations of the Collegium doing nothing, in administrative law, is an abuse of power. More than anything else, it sends a wrong message, which is loud and clear to all judges down the line not to cause any displeasure to the Executive lest they should suffer. Is this not a threat to the independence of the judiciary?” the anguished judge had asked CJI Misra. 

In the recent past, the Executive and the judiciary have been in a tug of war for control over its independence. According to an established practice, once a collegium reiterates its suggestion of a candidate, the government usually appoints them as a judge. However, since it has come to power in 2014, the Modi-led government had shown its disapproval over suggestions and sent back several names to the collegium - twice.

Malhotra’s elevation though welcome, does not indicate a thaw between the Executive and the judiciary.