Hours after a few Supreme Court judges approached Chief Justice of India Dipak Misra to express their “anguish” over the “downgrade” of Justice K M Joseph, Attorney General of India K K Venugopal is learnt to have met the CJI to “clarify” the seniority issue.
“He explained the legal precedents on this matter to the CJI,” said a source aware of the AG’s meeting with the CJI.
Official sources suggested that the government may have gone by a “transparent” principle, “backed by precedent” that gives primacy to the all-India seniority of High Court Judges.
According to this, Justice Indira Banerjee and Justice Vineet Saran — the two other judges cleared for elevation — are placed at fourth and fifth positions in the all-India seniority of High Court Judges respectively while Justice K M Joseph is at the 39th position.
This despite the fact that it was Justice Joseph’s recommendation that was sent the earliest by the Collegium, way back on January 10; the names of the other two were approved and sent on July 16. Moreover, the collegium had vowed to reiterate Justice K M Joseph’s name through another resolution on May 11.
Justice Joseph is also the longest-serving Chief Justice of any high court in India and will have a tenure until June 16, 2023.
“In terms of precedents, the High Court chief justice seniority is irrelevant,” said a government source. “The government has gone by the time- tested precedent of recognising the all-India seniority of High Court judges while considering the elevation to the Supreme Court.”
In this context, the source recalled how Justice Dipak Misra and Justice (now retired) J Chelameswar were both elevated to the Supreme Court the same day during the UPA regime but it was Justice Misra who got seniority over Justice Chelameswar owing to his all-India seniority of High Court judges.
“Both (Justices Misra and Chelmeswar) were appointed the same day. But, Justice Misra was senior as High Court judge and got seniority in the Supreme Court. The same precedent has been followed,” said the source stressing how Justice J Chelameswar’s seniority as High Court Chief Justice had no bearing. Justice Chelameswar became High Court Chief Justice in 2007 while Justice Misra became CJ in 2009.
But when asked about seniority of Justice Ranajn Gogoi (who became permanent judge in February 2001) against Justice M B Lokur (July 1999) in the Supreme Court, the Government source said that Justice Gogoi (elevated to Supreme Court in April 2012) gained seniority over Justice Lokur (June 2012) as the former was elevated to the Supreme Court earlier for “regional representation considerations.”
Asked about the view that Justice Joseph’s recommendation was sent before that of the other two, the Government source said: “Seeking reconsideration is a right of the Government and the Government exercised its right when it sought reconsideration of Justice KM Joseph’s name in April.”
When questioned about the Collegium’s decision to reiterate Justice KM Joseph’s recommendation of January 10, the source sought to suggest that it got the communication of Justice K M Joseph along with July 16 recommendation of two more names.
“What happens within the Collegium is an internal matter of the Supreme Court. The Government knows what gets communicated from the Supreme Court. We got three names after the July 16 Collegium meeting and consequently, the all-India seniority of High Court judges principle is applied,” said the government source.
Incidentally, the Supreme Court Collegium’s May 2, May 11 and May 16 deliberations at whicvh Justicer Joseph’s name was reiterated, in principle, was not communicated to the Government, claims the source.
“Additionally, the Supreme Court Collegium after its meeting on July 16 recommended three names – Justices Indira Banerjee, Vineet Saran and KM Joseph. How can the government deny the fact that Justice Banerjee is senior to Justice Joseph by over two years?”