Centre 'within its right' to reject recommendation for Justice KM Joseph's elevation to SC: CJI Dipak Misra

New Delhi: The Chief Justice of India on Thursday refused to stay the presidential warrant appointing senior woman lawyer Indu Malhotra as a Supreme Court judge and termed the plea of advocates challenging it as "unimaginable," "unthinkable," "unconscionable" and "never heard before."

Chief Justice of India (CJI) Dipak Misra said that it was inappropriate to put on hold the appointment of Indu Malhotra as a judge in the Supreme Court just because the central government has not cleared Justice KM Joseph's name.

A top court bench led by CJI Dipak Misra took strong note of the submission made by senior advocate Indira Jaising that Malhotra should not be sworn in as the apex court judge and the Centre be directed to recommend the name of Uttarakhand High Court Chief Justice KM Joseph as well.

"What kind of prayer is this," the top court bench, also comprising Justices AM Khanwilkar and DY Chandrachud, said, adding that the Centre is "well within its right to send back the recommendation for reconsideration."

"Supposing the government is sending it for reconsideration, it will be seen. You are saying 'stay the warrant.' It is 'unthinkable', 'unconscionable', 'unimaginable' and, if I may add, 'never heard before'," the CJI said.

Jaising referred to the Centre's decision of segregating the name of Joseph and Malhotra and said it cannot be done and either both names should have been recommended or rejected. 

"Constitutional propriety demands that the warrant of appointment of Indu Malhotra be implemented," the bench said.

The top court said that it is surprising that a member of a bar is being appointed as a judge and lawyers are mentioning at 2 pm for a stay on the warrant of appointment.

Jaising said that she is not pressing the prayer for a stay on the warrant of appointment and wants the larger issue of "cherry picking" of judges to be dealt by the court.

She urged the court to direct listing of the matter urgently and said, "we are worried about the independence of the judiciary." 

The bench refused to list the matter urgently and said it will come in due course of time. Over 100 members of the Supreme Court Bar Association had mentioned the plea alleging that Centre was interfering with the administration and independence of the judiciary by selectively acting upon the Collegium's recommendation for appointment in the Supreme Court. 

The reaction from the apex court bench came shortly after the Centre sent back Justice KM Joseph's name and urged the Supreme Court collegium or group of five most-senior judges to be "objective and fair" and reconsider their choice. 

(With PTI inputs)