Uttarakhand High Court Chief Justice K M Joseph’s elevation to the Supreme Court was recommended by the Collegium almost a month ago. But The Indian Express has learnt that the government, citing “disregard for seniority and regional representation”, may consider returning the recommendation to the Collegium for “reconsideration”.
Incidentally, it was a bench headed by Chief Justice Joseph which, in April 2016, left the Centre red-faced when it quashed imposition of President’s rule in Uttarakhand and revived the Congress government of Harish Rawat, directing him to prove his majority on the floor of the House. On January 10 this year, the five-member Collegium, comprising Chief Justice of India Dipak Misra and Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph, recommended Chief Justice Joseph’s elevation to the Supreme Court. It also approved the name of Senior Advocate Indu Malhotra for appointment as a judge of the Supreme Court — the first woman lawyer to be directly elevated to the Supreme Court from the Bar.
Sources familiar with deliberations within the government on the latest recommendations of the Collegium said: “Are we going to give seniority and regional in matters of appointing High Court Chief Justices and Supreme Court judges?”
Members of the legal fraternity, however, counter this position. They say there are no hard and fast rules that a High Court judge, who is down in the inter-state All India seniority list, cannot be elevated to the Supreme Court ahead of senior High Court judges.
But official sources indicated that there was no ruling out the possibility of returning the recommendation for elevation of Justice Joseph for “reconsideration”.
“Why can’t we,” the sources said, claiming that the recommendation was not in line with principles set out in two Supreme Court rulings of 1993 and 1998 that made the Collegium a mechanism for appointments to higher judiciary.
The sources underlined that Chief Justice Joseph currently stands at number 45 in the inter-state All India seniority of High Court Judges. “Not only 44 High Court judges are senior to Justice Joseph, 12 of them are Chief Justices of different High Courts,” the sources said.
In this context, the sources pointed to Chief Justices of different High Courts: Indira Banerjee (Madras High Court, originally from Calcutta High Court); Vineet Saran (Orissa High Court, originally from Allahabad High Court); Ajit Singh (Gauhati High Court, originally from Madhya Pradesh High Court); Rajendra Menon (Patna High Court, originally from Madhya Pradesh High Court); Hemant Gupta (Madhya Pradesh High Court, originally from Punjab and Haryana High Court); R Subhash Reddy (Gujarat High Court, originally from Andhra Pradesh High Court); Badar Durrez Ahmed (Jammu & Kashmir High Court, originally from Delhi High Court); and, Pradeep Nandrajog (Rajasthan High Court, originally from Delhi High Court).
The 1993 ruling in the Second Judges case, the sources said, had set out what are considered guiding principles for appointments to higher judiciary: “Inter-se seniority among judges in High Courts and their combined seniority in All India basis is of admitted significance in matters of future prospects… Inter-se seniority among judges in the Supreme Court based on the date of appointment is of similar significance. It is, therefore, reasonable that this aspect is kept in view and given due weight while making appointment from among High Courts to Supreme Court.”
The 1998 ruling in the Third Judges case, the sources said, reiterated it, saying “legitimate expectation of suitable and meritorious judge to be considered in their turn is equally relevant factor for consideration”.