After months of delays and controversy, Justice KM Joseph was finally sworn in as a judge of the Supreme Court on Tuesday, 7 August, along with Justices Indira Banerjee and Vineet Saran. However, the controversies have not ended, with fresh problems brewing over the order in which the three judges took their oaths.
Justice Joseph was sworn in last of the three, in accordance with the Supreme Court administration’s circular – reportedly, this was the order specified by the government after notifying their appointments. As a result, the other two judges appointed on Tuesday will be senior to Justice KM Joseph according to the convention of seniority followed in the apex court.
The order of swearing in remained unchanged despite a group of senior judges of the Supreme Court, including Justices Madan B Lokur and Kurian Joseph, meeting CJI Dipak Misra on Monday during the morning tea meeting, when they raised concerns about this development, which they viewed as interference by the government in judicial appointments.
The CJI was reported to have agreed to take the issue up with the Centre after consulting with Justice Ranjan Gogoi (the senior-most judge after him) and Attorney-General KK Venugopal. The Indian Express reported that he met with the A-G, who argued that the order of swearing-in advised by the government was based on the seniority convention and so it did not need to be changed.
The order of seniority is important since it determines who becomes Chief Justice of India, and also affects the ability of a judge to head a bench of the apex court. Justice Banumathi, for instance, is only getting to head a bench four years into her tenure as a Supreme Court judge, with only two years remaining. It also determines whether or not and for how long a judge becomes a member of the Collegium, which decides judicial appointments for the Supreme Court and the high courts.
Seniority Convention Breached?
According to the seniority convention, seniority is determined on the basis of when a judge is appointed to the Supreme Court. If two judges are appointed on the same day, the order of their appointment determines their seniority, and so needs to be in accordance with convention. For two judges being appointed on the same day, the one who has been a high court judge longer will be considered more senior.
On this basis, technically, there is nothing wrong with the order of in which the judges were sworn in on Tuesday – Justices Banerjee and Saran have served as high court judges for longer than Justice KM Joseph (even though he has been a Chief Justice of the high courts for longer). However, Justice Joseph’s name was originally recommended by the Collegium for elevation on 10 January 2018, while the other two judges were only suggested by the Collegium on 16 July.
The Supreme Court judges therefore felt that the order of swearing in should have in fact had Justice Joseph at the top of the list. According to the Hindustan Times, one of the judges who was to meet the CJI said “it was absolutely clear that the name which went first was senior to the names sent later” and that the Collegium had reiterated Justice Joseph’s name in a separate file from the other judges precisely for this reason.
Sources have told The Indian Express that the judges were “disturbed” and “shocked” that the CJI (who heads the Collegium) did not stand up to the government and safeguard the appointment process, despite the measures taken to ensure that Justice Joseph’s seniority should be recognised. They also noted that whether Justice Joseph was appointed first or third on this day would not change the fact that he will not be CJI as per convention, but added that the judges were still upset that the government had managed to effect a change in the order of appointment, which sets a bad precedent.
One of the judges decried this development to NDTV, calling it “blatant interference”. When the Collegium had originally recommended Justice Joseph’s name in January, they had specifically noted that they had considered the seniority and suitability of judges across the country and found him 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.”
The Centre still decided to send his name back to the Collegium for reconsideration, which has been long rumoured to be because of the decision passed by him in the Uttarakhand President’s Rule case, which did not favour the BJP. The Centre has consistently denied these rumours.
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