The government received immediate support from the collegium head, Chief Justice Dipak Misra, who said the executive was well within its rights to reject Justice Joseph's name while accepting the second name even though both were recommended for elevation together by the collegium. The names of Malhotra and Justice Joseph were recommended by the collegium in January.
In a letter to Justice Misra, Union Law Minister Ravi Shankar Prasad said the government's rejection of Justice Joseph's name has approval of the President and the Prime Minister and also flagged that the SCs/STs have no representation in the Supreme Court since long.
"The proposed appointment of .... Joseph as a Judge of the Supreme Court at this stage does not appear to be appropriate," Prasad said in the letter. "It would also not be fair and justified to other more senior, suitable and deserving Chief Justices" and senior judges of various High Courts.
In theory, the collegium can still reject the government's proposal and re-send Justice Joseph's name to the Law Ministry, which can then decide the future action.
The government's opposition to Justice Joseph's elevation is likely to deepen the rift between the executive and the judiciary.
In a ruling in 2016, Justice Joseph had cancelled President's rule in Uttarakhand and brought back to power the then Congress government of Harish Rawat in the state. The judgement was seen at that time as a major setback to the BJP-ruled government at the Centre.
The government's decision against Justice Joseph's elevation evoked sharp reactions with the Supreme Court Bar Association President terming it as "disturbing" and the main opposition party, Congress, asserting that the independence of the judiciary "is in danger" and asking if it would now speak in one voice that "enough is enough".
Meanwhile, the apex court rejected a plea of senior advocate Indira Jaisingh to stay the warrant of apointment of Malhotra.
Notification announcing the appointment of Malhotra was issued this morning by the department of justice in the Law Ministry.
"...the government has been constrained to segregate the recommendation of the Supreme Court...such segregation of proposals has been done in many cases earlier, which include appointment of judges to various HCs and even the SC in the interest of expeditious action on appointments," Prasad told Justice Misra.
In June 2014, the then Chief Justice of India R M Lodha had written to the government making it clear that the executive cannot segregate recommendations without prior approval of the collegium. This had happened when the government had had decided against elevating senior lawyer and former solicitor general Gopal Subramanium to the Supreme Court, while accepting other recommendations of the collegium, a group of senior most judges of the Supreme Court that decides on appointment of the apex court judges.
But in the meantime, Subramanium withdrew his consent to be recommended for the judgeship.
In his six-page letter this morning, Union Minister Prasad said in the all-India high court judges seniority list, Justice Joseph is placed at serial number 42.
"There are presently 11 chief justices of various high courts who are senior to him in the all-India high court judges seniority list," he said.
Out of a sanctioned strength of 1079 judges, the 24 HCs have 669 judges.
Noting that the parent high court of Justice Joseph, the Kerala High Court, has adequate representation in the Supreme Court and other high courts, Prasad said the high courts of Calcutta, Chhattisgarh, Gujarat, Rajasthan, Jharkhand, Jammu and Kashmir, Uttarakhand, Sikkim, Maniur and Meghalaya have no representation in the top court.
"It may be relevant to mention here that there is no representation of SCs/STs in the Supreme Court since long," the letter read.
Quoting two Supreme Court judgements, the letter also said that senior HC judges should entertain hopes of elevation to the SC and the CJI and the collegium should bear this in mind.
While recommending the name of Justice Joseph for the top court, the collegium had said that he is "more deserving and suitable in all respects than other chief justices and senior puisne judges of high courts for being appointed as judge of the Supreme Court of India".
The collegium had taken into consideration combined seniority on all-India basis of chief justices and senior puisne judges of high courts, apart from their merit and integrity, the body of top five judges of the Supreme Court had said.
But government sources said the "campaign" to project Justice Joseph as a victim of the order was "disturbing". "It is baseless... Justice J S Khehar struck down the National Judicial Appointments Commission Act. He was appointed as the CJI," they pointed out.