The Telegraph
Saturday , February 4 , 2017

Dissent note on passed-over judge

New Delhi, Feb. 3: A judge of the Supreme Court collegium has recorded a strongly worded dissent note for not elevating Justice K.M. Joseph, the Uttarakhand High Court chief justice, to the Supreme Court.

The unparalleled note of dissent of Justice J. Chelameswar stands out all the more so because Justice Joseph had last year delivered the momentous verdict that quashed the central rule imposed by the Narendra Modi government in the hill state last year.

This is the first time in the annals of the Supreme Court collegium that a member has written a dissent note. Normally such views are conveyed orally.

Justice Chelameswar had conveyed his strong displeasure in a two-page note on Wednesday to the collegium, headed by Chief Justice of India J.S. Khehar. The other members of the collegium -with which is vested the powers of elevation and transfer of Supreme Court and high court judges - are Justices Dipak Misra, Ranjan Gogoi and Chelameswar.

Soon after Justice Joseph had quashed President's rule in Uttarakhand, an issue had come up that suggested the Centre was dragging its feet on the judge.

Last April, the collegium had transferred Justice Joseph to Andhra Pradesh High Court on medical grounds. But the Centre has refused to clear the transfer till date.

Around October last year, Justice Joseph's name was shortlisted for elevation to the Supreme Court by the previous collegium headed by Justice T.S. Thakur.

After Justice Thakur demitted office last month, the new collegium headed by Justice Khehar met a fortnight back without Justice Chelameswar being present.

The collegium again met on Wednesday and cleared five names for elevation. However, the names of Justice Joseph and that of four others were dropped.

Sources told The Telegraph that when the file was sent to Justice Chelameswar - the file was circulated because of another unprecedented stand taken by the judge last year - he cleared the names of the five chosen by the other members of the collegium.

However, Justice Chelameswar wrote a separate dissent note, expressing serious objections to the move to "drop" Justice Joseph.

Justice Joseph "is an outstanding" judge with impeccable integrity and the most suitable judge for elevation to the Supreme Court, Chelameswar wrote. The Supreme Court judge did not object to the omission of the other four names by the collegium.

The dissenting judge is said to have taken a view that by not elevating a "highly competent" judge like Justice Joseph, the collegium was setting an unhealthy precedent.

Faced with a tricky situation with one of its own members writing an unprecedented dissent note, the collegium is yet to send the files to the Union law minister, the sources said.

The five names cleared are that of Kerala High Court Chief Justice Mohan Shantanagoudar, Karnataka High Court judge Justice Abdul Nazeer, Madras High Court Chief Justice Sanjay Kishan Kaul, Rajasthan High Court Chief Justice Navin Sinha and Chhattisgarh High Court Chief Justice Dipak Gupta.

Neither Chief Justice Khehar nor Justice Chelameswar could be reached by this newspaper for comment. Judges usually do not discuss matters of the collegium with the media.

In August last year, Justice Chelameswar had refused to attend any collegium meeting unless transparency was ushered in.

He was of the view that only the reasons for elevation of judges or their transfers are recorded by the collegium. But the reason for rejecting a judge's name for elevation is never given in writing. He took the stand that some of the collegium members were not showing the necessary transparency in the appointment process.

After refusing to attend the collegium meeting since August last year, Justice Chelameswar is now examining the files on elevation and transfer of judges after they are circulated to him by the other collegium members. Normally, all the five collegium members sit together face to face and decide the names.

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