Former Supreme Court judge Kurian Joseph on Friday said the Memorandum of Procedure (MoP), which guides appointments and transfers in higher judiciary, was final as far as the top court is concerned and the collegium has been working in accordance with the draft.
His remarks came despite the government maintaining that the MoP is a work in progress and is being finalised in consultation with the apex court.
"As far as the Supreme Court is concerned, it (MoP) is final, as far as the government is concerned it is not final," Joseph, who retired on Thursday, told reporters in reply to queries on the finalisation of the document, which has been a bone of contention between the government and the apex court.
He was part of the controversial January 12 press conference in which now Chief Justice of India Ranjan Gogoi, Justice Lokur and former judge Justice J Chelameswar had raised serious questions over various issues including allocation of cases in the top court.
Asked whether the collegium was working in accordance with MoP as mandated by National Judicial Appointment Commission (NJAC) verdict of 2015, Joseph replied, "See, it is very interesting. As far as MoP is concerned the Supreme Court's view is that it is final because it has been approved.
"The government keeps on saying that it is not final because they are awaiting something from the Supreme Court."
He said that the collegium is now acting on the basis of latest draft MoP in the matter of procedure and in the matter of time for clearing the names for appointment of judges.
"However, I don't think the time that was expected for the processing of names is actually happening, otherwise the collegium is functioning on the basis of draft of the MoP," he said.
In response to a query on differences between the Centre and the Supreme Court besides the aspect of national security over finalisation of MoP, he said, "To me, I had tried to understand why the area of differences is not finalised yet because the government kept on saying on the floor of Parliament that the MoP is not final."
He said, "I kept on asking the successive Chief Justices, is it not final yet. The Chief Justices kept on saying that it is final as far as the Supreme Court is concerned. So the version is as far as the Supreme Court is concerned it is final, as far as the government is concerned it is not final".
Justice Joseph said that there is a draft MoP but whether it is final or not is the only issue.
"There has been a lot of transparency and things have been done with more caution. There were attempts to get things done to bring about proper systems and practices. One suggestion in fact, the fallout of the press conference was that to have a proper committee for assisting the chief justice in exercise of his duties, but unfortunately that did not happen," he said.
About the issue of delay in appointments and withholding of names of judges recommended by the collegium, Joseph referred to former Chief Justice of India R M Lodha's statement that "it is an attack on the heart of an independence of judiciary".
He said, "Look at some of the cases, which have been selected by the collegium and were sent for consideration by the government. A person, who is likely to go up in the normal course in accordance with the seniority which has been decided by the high court, which recommended it and even the Supreme Court having done the same thing and if that is sought to be interfered with. That is in a way interference to the administration of justice".
Justice Joseph was asked whether he was referring to the elevation of Justice K M Joseph whose name was cleared after Justice Indu Malhotra's on the same day.
"No, the delay did not have any direct impact on his prospects being affected. I am not referring to the case of Justice K M Joseph alone. I am referring to other cases which are happening in the high court. That's what I meant," he said.
Justice Joseph said the court is too small for the volume of work that is being handled by it.
"When the Supreme Court was conceived, nobody ever thought that this would be the number of cases that the apex court would be required to handle. So this much area was sanctioned. If this type of volume the Supreme Court is required to handle probably it requires a little more infrastructural development in terms of courtrooms space," he said.
Justice Joseph suggested that some courts in apex court could function in the afternoon session or the number of cases could be limited at the admission stage itself.
On Sabarimala and other recent verdicts of apex court "not being followed", Justice Joseph said, "As far as the judiciary is concerned, once a judgement is pronounced it is the law of the land in terms of Article 141 of the Constitution and it is binding on all courts and tribunals in the country".
He said that "once the judgement is pronounced, it becomes the law of the land. Whether it can be followed or not is the issue.
"If it cannot be followed in terms of technical or legal problem then the party which faces a problem in implementing it will have to come back to the court and seek a proper clarification. That is the proper method to be followed.
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