On Monday, a day ahead of the swearing-in of three new judges in the Supreme Court, a section of sitting judges met Chief Justice of India Dipak Misra and lodged their protest against the lowering in seniority of one of the three new judges in the government notification on the appointments. The government has placed Justice K M Joseph last in seniority, after Justices Indira Banerjee and Vineet Saran, although the SC Collegium had recommended his name ahead of the other two.
How is the seniority of judges in the Supreme Court decided?
It is decided on the basis of date of induction in the Supreme Court. A judge who takes oath earlier becomes senior to another who takes oath later. In cases where warrants for appointment of judges to Supreme Court are issued by the government on different dates, the seniority is automatically decided by virtue of the dates of swearing-in by the CJI.
There is no stated rule, whether in the current Memorandum of Procedure (MoP) or the draft MoP that is under finalisation, to decide the seniority of judges whose warrants of appointment are issued on the same date. As the warrants are issued by the government in a sequence, the practice has been for the CJI to administer the oath in the same order. For example, the warrants for appointment of current CJI Misra and now retired Justice J Chelameswar were issued on the same day but, as Misra’s warrant was numbered above that of Justice Chelameswar, he was sworn in first. This ensured that he became CJI, deemed as senior to Justice Chelameswar.
On what basis are the warrants issued by the government?
These are on the basis of the recommendation of the Collegium, which comprises the five most senior SC judges. The Collegium’s recommendations for any name can be returned by the government, but if the Collegium reiterates the name, the government is bound to issue the warrant of appointment. The procedure for this is laid down in the MoP.
Article 124(2) of the Constitution says: “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years. Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.”
What does the Collegium consider while making the recommendation?
As per the judgment in the Second Judges’ case which led to the current Collegium system, it is a subjective process that doesn’t just follow the seniority list. The Collegium, along with merit, is also supposed to consider the suitability of a person for elevation to the Supreme Court, and as stated in the MoP, it looks at seniority of judges in the All India High Court Judges’ Seniority List and broadly tries to ensure balanced representation of various high courts. For example, Justice J S Khehar was junior to both Justices Misra and Chelameswar in the High Court seniority list but was elevated to the Supreme Court a few months before them. This led to him becoming the CJI, which would not have been possible if he had been elevated along with the other two, who came to the High Court before him.
What is the current controversy around Justice Joseph’s seniority?
The Collegium had recommended the name of Justice Joseph, Chief Justice of Uttarakhand High Court, on January 10 for elevation to the Supreme Court, along with the name of then senior advocate Indu Malhotra. In April, the government issued the warrant of appointment for (now Justice) Malhotra but returned the name of Justice Joseph. On July 16, the Collegium reiterated Justice Joseph’s name. The same day, it also recommended the names of Justices Banerjee and Saran for elevation, but segregated the reiteration of Justice Joseph’s name from the two new recommendations, making it the first file, so that his case remains separate and first in the list.
On Friday, the government issued the three warrants, with Justice Joseph’s seniority placed after Justices Banerjee and Saran in the order in which warrants were issued. This means he will be junior to the two judges, whose names were recommended in July while his name was originally recommended in January.
Why are some SC judges upset about it?
As per the unanimous Collegium resolution of January 10, Justice Joseph was found to be “more deserving and suitable in all respects than other Chief Justices and senior Puisne Judges of High Courts for being appointed as Judges of the Supreme Court of India”. Some judges of the Supreme Court feel that the established procedure for determining seniority of judges has been violated by the government, to deliberately slight the judiciary, a position which should not be acceptable to the CJI. While none of these three judges are in a position to become the CJI, if the principle of seniority is followed while appointing the CJI, it does affect the membership of the Collegium. If more senior to his two colleagues, Justice Joseph would have started heading benches earlier.
What is the government’s argument about placing Justice Joseph third in seniority?
The government stand is that as it received all three names — one reiteration and two recommendations — on the same day, it treated all of them as equal, going by the principle of their inter-se seniority in the All India High Court Judges’ Seniority List. It did not consider the original dates of recommendation as having a bearing on the warrants.