As the three High Court chief justices elevated to the Supreme Court await their swearing-in on Tuesday, some judges of the apex court are said to be “anguished” and “shocked” that the government placed the name of Chief Justice of Uttarakhand High Court Justice K M Joseph last in seniority of appointment list, despite his name being recommended and reiterated before the other two names.
Sources told The Indian Express that some Supreme Court judges have sought a meeting with Chief Justice of India Dipak Misra on Monday morning to convey their anguish and disappointment at the action of the Central government in placing Justice Joseph last in seniority, after Justices Indira Banerjee and Vineet Saran. It was not clear how many judges would meet the CJI.
The swearing-in ceremony of the three newly appointed judges is scheduled to be held in the CJI’s court at 10.30 am on Tuesday.
While, sources said, irrespective of his being number one or number three on the list, Justice Joseph would not have any chance of becoming the CJI — if the principle of seniority is followed in appointment of CJIs by the government — it is the principle of appointment of Supreme Court judges which is being violated and needs to be defended in this case.
Also, being number one on the list would put Justice Joseph in a position to head an independent bench in the Supreme Court earlier than at number three, sources said.
As per sources, these Supreme Court judges, who are “disturbed” and “shocked”, feel they have been let down by the CJI, for “not standing up to safeguard” the sanctity of process of appointment of judges to the apex court. The move is seen as a signal from the government that it will have the last word on the matter.
On August 3, President Ram Nath Kovind issued the warrants for appointment of the three judges. Subsequently, the Supreme Court issued a circular announcing the time and date of the swearing-in. Sources said the judges might request the CJI to take a corrective measure before the oath-taking.
“Justice Joseph’s name was approved by the SC Collegium comprising the five most senior judges on January 10 while the other two names — Madras High Court Chief Justice Indira Banerjee and Orissa High Court Chief Justice Vineet Saran — were approved on July 16. Therefore the name which was sent first must come first in the list,” sources said.
Besides, sources argued, the Collegium had also vowed to reiterate Justice Joseph’s name through another resolution on May 11.
Even while reiterating the name of Justice Joseph on July 16, sources added, his file was sent separately from the other two recommendations by the Collegium, to make it clear to the government that it was an old case, and not linked to the other two recommendations. Moreover, sources said, even the file of separate reiteration of Justice Joseph’s name was on top of the list of documents sent to the government, before other recommendations, to ensure that there was no confusion in the matter.
The seniority of Supreme Court judges who are appointed on the same day is decided by the precedence in issuing the warrant of appointment by the government. As per the warrants issued by the government on Friday, Justice Joseph was placed after Justices Banerjee and Saran, presumably on the basis of their seniority in the All India High Court Judges’ Seniority List.
Justice Joseph, however, is currently the longest serving Chief Justice of any high court in India and will have a tenure in the apex court till June 16, 2023. Justice Banerjee will serve as a judge till September 9, 2022, and Justice Saran till May 10, 2022, with 65 years as the retirement age of Supreme Court judges.
As per the Collegium resolution of January 16, signed by CJI Misra along with Justices J Chelameswar (now retired), Ranjan Gogoi, M B Lokur and Kurian Joseph, they had found Justice Joseph 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”.
Despite the resolution specifically mentioning that the decision was being taken after considering the combined seniority of Chief Justices and senior Puisne Judges of high courts, apart from their merit and integrity, the government had returned his name in April, citing his overall seniority in the All India High Court Judges’ Seniority List, with 11 Chief Justices of various high courts currently senior to him.
On May 11, the Collegium had decided “in principle” to reiterate its decision to recommend Justice Joseph’s elevation. But it was only on July 16 that the Collegium finally reiterated its recommendations, saying the communication from the government did not state anything adverse on the judge’s suitability.
Government sources cited this to justify its stand on Justice Joseph’s position in the warrants issued, saying the final proposal on his name came on July 16, on which day the Collegium also cleared the names of the other two judges. The May 11 meet had only taken an “in-principle” decision, they point out.
The government has been accused of not being keen on Justice Joseph’s name because as the Chief Justice of the Uttarakhand High Court, he had quashed President’s Rule imposed in the state. Earlier, in May 2016, the government had not acted on the Collegium’s recommendation to transfer him from the Uttarakhand High Court to the High Court of Andhra Pradesh & Telangana on medical grounds.
In a letter to the CJI in April, Law Minister Ravi Shankar Prasad had cited Justice Joseph’s standing in the All India High Court Judges’ Seniority List, adequate representation for the Kerala High Court (Justice Joseph’s parent high court) in the apex court, and lack of representation of some other high courts in the Supreme Court to justify the government’s request for reconsideration of Justice Joseph’s name.