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Collegium nod for High Court judge’s elevation: Government may ask SC to rethink

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”.

Written by Ravish Tiwari | New Delhi | Updated: February 7, 2018 9:43 am
Collegium nod for High Court judge’s elevation: Government may ask SC to rethink Uttarakhand High Court Chief Justice K M Joseph

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”.

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  1. V Kumar
    Feb 7, 2018 at 12:36 pm
    So called tenure seniority is irrelevant. Many brilliant judges of the supreme court, like krishna Iyer or Hidayatullah, did not have "seniority" but went on to become the most brilliant judges in indian history. Judges are not baboos like the modi govt baboos who have done hardly anything in 5 years. Another aspect is that regional representation is being accorded. Justice joseph is from uttarakhand court. That is how regional representation is done for last 70yrs. It is not done by considering his mother tongue or religion. It must be remembered that there is also no "regional representation" even in modi cabinet. All these flimsy and illegal excuses are being made by Modi because justice joseph gave a judgment contrary to modi govt.
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      Kaushal Kishore thakur
      Feb 7, 2018 at 3:06 pm
      Till the appointment of judges is done by collegium,there should not be interference by the govt.It gives scope for public to think govt 's motive/political interference in judiciary.
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    2. Pais Hilary
      Feb 7, 2018 at 12:08 pm
      Appointments of judges to the Supreme Court of India should be through merit and not by seniority alone. The assessment of the Collegium in the matter of merit is final. It is not for Ravishankar Prasad to dispute this. This government seems to me apprehensive of merit and is fishing for politically like-minded judges.
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      1. Freak Jesus
        Feb 7, 2018 at 12:17 pm
        Man you are one Christian fascist rapist. SC appoints everyone based on seniority including the CJI. Then why bypass 42 Senior judges and appoint this christian fundamentalist as a judge? We already have a rapist Kurien on the SC bench. So how come Joseph is better than 42 other senior judges? Just because he is a christian he is getting favors from Church and Kurien and others.
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        sham
        Feb 7, 2018 at 9:53 am
        Is it not strange that the gang of four wo form 4/5t majority of the collegian wanted all 'sensitive' cases to be entrusted to them as they are 'senior' judges and teh same gang want to elevate a junior judge overlooking the seniority of 44 other judges including many high court chief justices! For these appendages of left-award wapsi gang in SC, seniority matters only for them self and when appointment to SC, a major permanent decision compared to allotment of some cases is concerned, they have nop problem in overlooking seniority and may want more like them self who wil toe left-congrses line in SC! This is serious ! Why just not elevate senior most HC judge to SC after IB/CBI background check? Colleguim or the elected government will have no role in SC judge appointments if that route is taken.
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          BHAGWAT GOEL
          Feb 7, 2018 at 9:09 am
          IT IS SUCH THINGS THAT RAISE QUESTIONS ABOUT THE COLLEGIUM SYSTEM RUN BY JUDGES. RECENTLY A JUDGE FOUND WITH MANY QUESTION MARK ON HIM BY INTELLIGENCE AGENCIES WAS APPOINTED DESPITE OPPOSITION OF GOVERNMENT. CAN COLLEGIUM OF 5 TOP JUDGES APPOINT CORRUPT JUDGES? SHIULD SUCH APPOINTEES NOT SACKED/IMPEACHED. AFTER IMMEDIATE SUSPENSION /SENDING THEM ON LONG LEAVE. CAN 'WE THE PEOPLE, RAISE QUESTIONS LIKE CORRUPTION IN APPOINTMENTS BY JUDGES.
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          1. Sankaran Krishnan
            Feb 7, 2018 at 8:09 am
            When in Govt. postings of IAS Officers, IPS Officers etc., the seniority applies why not the same procedure is not being followed at Judiciary and why this double speak and standard followed by the SC Collegium and on what basis they had recommended the elevation su ding the 12 Chief Justices of High Courts at different States is the ???
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            1. V Kumar
              Feb 7, 2018 at 12:58 pm
              seniority has never been a primary criterion because judges are much more important than baboos or bureaucrats who come and go. From all the judges, looking at their judgments and high personal qualities, a few may be chosen for supreme court. When supreme court says something it is the law of the land and it has the power to overturn any law or amendment or government action. So it is much more important than any babu bureaucrat . Hence the criteria is different and seniority is not a consideration. Once a judge has adequate experience it can be seen whether he is better and more brilliant than other fellow judges
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