The arguments given by the government for returning the recommendation for appointment of Uttarakhand Chief Justice K M Joseph to the Supreme Court do not match precedent, experts critical of the move told The Indian Express.
While the government has stated in its letter that Justice Joseph was at serial number 42 on the All India High Court Judges’ Seniority List, he was the seniormost as the chief justice of a high court. Sources said that there was no precedent of going by the judges’ seniority list. Justices Mohan M Shantanagoudar and S Abdul Nazeer from Karnataka High Court were elevated to the Supreme Court by the same government in February 2017, when two judges, H Ramesh and H G Ramesh from the same parent high court, were senior to Justice Nazeer. Justices Navin Sinha and Deepak Gupta were appointed by this government last year when there were many others higher on the judges’ seniority list.
Regarding the government’s argument that certain high courts were currently not represented in the Supreme Court, it is understood that at any given point of time, some high courts are bound to be not represented in the apex court. Moreover, if representation of all courts was the determining factor, sources said this government would not have appointed two judges from Bombay High Court in May 2016 and two from Karnataka High Court in February 2017. Many high courts were unrepresented in the Supreme Court at both the junctures, when multiple names were elevated from the same parent high court.
The government has argued that if Justice Joseph is elevated, he would be the second judge from the parent Kerala High Court in the Supreme Court. While the current judge in the Supreme Court from the same parent High Court, Justice Kurian Joseph, is due to retire in November 2018, there are at least five judges currently serving in the apex court whose parent high court is Bombay High Court.
Regarding the government’s argument that there is no representation from Scheduled Caste and Scheduled Tribe communities in the Supreme Court, there would be four remaining vacancies in the apex court even after Justice Joseph’s elevation. Sources said that these vacancies could be filled to give adequate representation to SC/ ST communities in the Supreme Court.
2 CJs from Kerala
To the government’s argument that there are two other chief justices of high courts whose parent high court is Kerala High Court, currently there are two chief justices whose parent high court is Bombay High Court.
These facts are likely to be raised and considered if CJI Dipak Misra convenes a full court to discuss the matter, as demanded by some of his colleagues, or when a meeting of the five-member collegium is convened to discuss the government’s action of returning Justice Joseph’s name.