As apprehended, the Central Government has altered the order of seniority among newly appointed three justices of the Supreme Court of India — namely, Justice Indira Banerjee, Justice Vineet Saran and Justice K M Joseph. According to their warrants of appointments signed off by the President of India on August 3, 2018, Justice K M Joseph has been put below the other two justices in the seniority order despite the fact that Justice Joseph’s name was initially recommended by the Supreme Court Collegium much before the name of Justices Banerjee and Saran.
Breaking- Government of India notifies appointment of Justice K M Joseph as judge of the Supreme Court of India. pic.twitter.com/OfwsWLp33Z
— The Leaflet (@TheLeaflet_in) August 3, 2018
The mess on the seniority issue has begun with the recommendation of Justice Joseph’s name, reconsideration of his name that was sought by the Government of India,and the subsequent reiteration of his name by the Collegium, alongwith the recommendation for appointments of two new judges, but in a separate file, to the Department of Justice.
Background to the confusion
Justice K M Joseph’s name for the first time was recommended on January 10, 2018 along with the name of Indu Malhotra (presently judge of the Supreme Court) by the Supreme Court Collegium, which then consisted of Chief Justice of India DipakMisra, Justice J Chelameswar, Justice RanjanGogoi, Justice Madan B Lokur and Justice Kurian Joseph. The Collegium in its resolution to this effect had clearly stated that the appointments be made in the following order:
- Justice K M Joseph
- Indu Malhotra, Senior Advocate
The above order of appointments meant that Justice Joseph ought to have been senior to Justice Indu Malhotra. However, the Centre government after sitting on the file for more than three months decided to segregate the name of Justice Joseph in order to seek reconsideration on his name on the ground that he lacked seniority in combined seniority on all-India basis of senior puisne Judges of High Courts. The Centre Government also decided to notify appointment of Indu Malhotra as judge of the Supreme Court. With the appointment of Indu Malhotra, Justice Joseph, though was sought be appointed by the Collegium in a way to give him seniority over Indu Malhotra, was made to wait for the reiteration of his name by the Collegium.
The Collegium instead of reiterating Justice Joseph’s name at the first place without wasting time, decided on May 11, 2018 that reiteration of Justice K M Joseph’s name should also be accompanied by the recommendation of the names of Chief Justices of High Courts for elevation as Judges of the Supreme Court. This is where the Collegium erred knowing fully that reiteration of his name along with the names of other Chief Justices could compromise his seniority further because seniority is determined among those appointed on the same day, on the basis of their initial appointment in the High Court. It is now a matter of fact that the initial joining of Justice Indira Banerjee and Justice Vineet Saran is earlier than that of Justice K M Joseph. And now they have been appointed as judges of the Supreme Court on the same day.
On July 16, 2018, the Supreme Court Collegium met and decided finally to reiterate the name Justice K M Joseph for the appointment as the judge of the Supreme Court. On the very day, the Collegium decided to recommend names of Justice Banerjee and Justice Saran for their elevation to the Apex Court. This time, the Collegium again committed error in creating two separate files i.e. one that of reiteration of Justice K M Joseph and the other one containing recommendations of the names of Justice Banerjee and Justice Saran. Moreover, neither of the files specified seniority of Justice K M Joseph qua other two names in event appointments is to be made together. The blame, therefore, goes to Collegium because it didn’t send Justice Joseph’s name in a same file wherein recommendation for Justice Indira Banerjee and Justice Vineet Saran contained. Collegium could have very well specified the order of seniority in the same file. The lack of caution on the part of the Collegium has caused grave injustice to an upright judge, Justice K M Joseph, who has been made junior to four judges against the intention of the Collegium which recommended his name way back in January 2018. It appears that the Collegium has succumbed to the pressure of the Executive if not wholly but to a large extent.
Judges upset over altering seniority of Justice Joseph
If the media reports are to be believed, judges of the Supreme Court are disturbed by the fact that Centre Government has altered the seniority of Justice K M Joseph. They have decided to meet Chief Justice of India, Dipak Misra on this issue. Be that as it may, the question is whether the CJI really have any choice in undoing the alternation of seniority of Justice K M Joseph? The CJI administers oath to newly appointed judge of the Supreme Court on the authorisation by the President of India. Oath is administered calling upon a newly appointed judge by his/her name in order of their warrant of appointments that also indicates seniority.
All this is decided by the appointing authority of the judges, that is, President of India. CJI only facilitates formal entry of newly appointed judges into their offices. The CJI, therefore, has no choice but to administer oath as per the order of warrant of appointments issued by the President.
Independence of the institution is more important than an individual. The scope that the Executive enjoys at present in segregating the name of a candidate recommended by the Collegium led to its unwarranted interference in the independence of the judiciary. Seniority of a judge is an important aspect of independence of the judiciary. Seniority determines as to who would occupy the office of the Chief Justice of India, and it also makes one part of the Collegium. At present, government can always twist seniority to deprive a judge of both.
The question of great importance, therefore, is whether Executive can segregate one name from the recommendation made by the Collegium and notify the appointment of the other one that eventually disturbs seniority of the proposed judges in the Supreme Court — as happened in the case of Justice K M Joseph. Law is not settled on this point. Nothing authoritative is available in case laws on this crucial point. It may be noted that a Public Interest Litigation (PIL) filed by one GD Inamdar, a retired district judge from Solapur district in Maharashtra, questioning segregation of Justice K M Joseph’s name is pending before the Supreme Court since April 28, 2018. This PIL has not come up for hearing even for once since the day of filing.
Apex court should use this case as an opportunity to lay down a good law on the issue of segregation so that executive be prevented from manipulating seniority of candidates to be appointed in the Supreme Court in future.