Appointment of judges is an endless war

Sushil Kutty 

[dropcap]T[/dropcap]he war over judges continues unabated. If the battle lines are drawn, the canvas of the battleground is widening by the day. Now, it has extended to appointments of judges in the Supreme Court. While one judge has been appointed with acceptance from both the Congress and BJP, there is strife over the non-appointment of another judge, the Malayalee Justice KM Joseph.

The Congress alleges Justice KM Joseph’s appointment has been stalled because the BJP government doesn’t want an independent-minded judge and this is exactly what the Congress Party has been highlighting in its war with the BJP over the judiciary.

Justice KM Joseph, who is a judge in the Uttarakhand High Court, apparently doesn’t fit in the BJP’s definition of a judge fit for the SC because he has delivered a judgement not quite in line with the BJP’s. His ‘file has been sent back to the Supreme Court collegium for a relook. The government also says there are “11 judges senior to Justice KM Joseph”.

The Modi government apparently thinks there are already “too many judges from Kerala” in the higher judiciary, including Justice Kurien Joseph in the apex court and three senior judges in high courts. Elevation of one more judge from Kerala, therefore, is not “justifiable”. The government might as well say there are “too many judges with Joseph in their names!”

Read more: Indu Malhotra creates history amid row, becomes 1st woman lawyer to enter the top judiciary directly

Hitting back at the Congress, Union Law Minister Ravi Shankar Prasad says the Congress itself is to blame. It had appointed junior judges over senior judges during its time in power. ‘With its kind of record, the Congress has no business lecturing us,” says Prasad. “The Congress has always compromised with the ‘Garima’ of the judiciary.”

As expected, Prasad brought in the Emergency to go ballistic on the Congress, point out how the Congress threw the judiciary under the bus because the Allahabad High Court passed an adverse judgement against Indira Gandhi. “The Congress has no moral authority to talk to us about judicial appointments.”

But why penalise Justice KM Joseph for Indira Gandhi’s wrongs? Emergency happened 40+ years ago. At the time Justice KM Joseph must have been a callow young boy/youth, maybe not even an aspiring judge.

The Centre has the right to send back his ‘file’ to the collegium. But if the collegium sends the file to the government a second time, then the government is duty-bound to “accept”. If it still rejects the appointment of Justice KM Joseph, then there is every reason to agree with the Congress that the “Modi government wants to pack the judiciary with its men”.

The other judge cleared for appointment to the Supreme Court, Justice Indu Malhotra, is the ‘perfect choice’ because there should always be “at least one woman in the Supreme Court” and so far, starting with Justice Fatima Bibi, there have been only six female Supreme Court justices. Besides, Justice Indu Malhotra is a “top-notch pick”.

The fact of the matter is neither the Congress nor the BJP can take a call different on a female judge because that would not be politically correct and also not prudent considering that women are a powerful vote-bank. With elections one after the other this year and general elections next year neither party can look anti-women.

But Justice KM Joseph is Christian and the BJP even if it wants to appoint him will gravitate to the safer side of not alarming its base, the Hindu vote-bank, both in Kerala and elsewhere in India. The BJP is after all, first and foremost, overwhelmingly a Hindu party and only then a nationalist party.

The congress on the other hand has to look at its own base, the so-called secular vote-bank in which minorities such as Muslim and Christian figure prominently. In Kerala, the Christian vote-bank is very crucial, more so when Christians have a choice of voting the communists or the Congress.

(Author is a senior journalist)