KM Joseph elevation to Supreme Court: What is the fresh controversy on judges’ seniority all about?

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New Delhi | Updated: August 7, 2018 12:08:36 PM

Justice KM Joseph was today sworn in as a Supreme Court judge in the capital on Tuesday. Two other judges, Justices Indira Banerjee and Vineet Saran, were also sworn alongside him.

Justice KM Joseph, Supreme Court, Collegium, Supreme Court judge, Dipak Misra, Indira Banerjee, Vineet SaranKM Joseph elevation to Supreme Court: What is the fresh controversy on judges’ seniority all about?

Justice KM Joseph was today sworn in as a Supreme Court judge in the capital on Tuesday. Two other judges, Justices Indira Banerjee and Vineet Saran, were also sworn alongside him. While the government’s approval to the Supreme Court Collegium’s reiteration of its recommendations was expected to draw to close its protracted conflict with the Supreme Court, the Centre’s August 3 notification, confirming the elevation of Uttarakhand Chief Justice KM Joseph and two others to the Supreme Court, triggered a fresh row regarding alleged attempts by the government to ‘downgrade’ Justice Joseph in the seniority list of the Supreme Court.

The notification shows Justice KM Joseph’s name placed at the bottom of the list, taking many judges by shock. On Monday, they met CJI Dipak Misra to lodge their protest over the possible ‘downgrade’ of Justice KM Joseph in the seniority list of the Supreme Court. The notification said that former Madras High Court Chief Justice Indira Banerjee will first take oath as the Supreme Court judge and then former Orissa High Court Chief Justice Vineet Saran. Justice KM Joseph will be administered oath as the Supreme Court Justice last, thus making him junior to Justice Banerjee and Justice Saran. This decision has anguished a few judges who have demanded an intervention from the CJI.

There is an argument that ‘downgrading’ Justice KM Joseph’s in the seniority list of the Supreme Court is being done deliberately. However, the appointment of the three and especially placing Joseph’s name at the bottom has nothing to do with scuttling his prospects of becoming the CJI. The fact is that Justice DY Chandrachud, a sitting SC judge, will remain senior to all three judges appointed today throughout their period of service at the top court.

Justice Chandrachud was appointed as an SC judge on may 13, 2016 and will retire in November 20214. The documents show that while Justice Joseph will demit office on June 16, 2023, Banerjee and Saran will vacate their office on September 24, 2022 and May 10, 2022, respectively. The age of retirement for SC judges in India is 65 years. Therefore, the argument that government is ‘downgrading’ the rank of Justice Joseph in the seniority list of the Supreme Court does not appear to have a motive.

What is the procedure in deciding seniority?

There are many grey areas in deciding the seniority of Justices in the Supreme Court given that it is governed by convention than any settled laws. According to reports, many have questioned the government for clubbing Justice Joseph’s name with the remaining two whose elevation was recommended on July 16, the same day the former’s name was reiterated by the powerful Collegium of the Supreme Court. The Collegium had first cleared the file of Justice Joseph on January 10 along with Indu Malhotra. But the government while it cleared Indu Malhotra’s file, it returned KM Joseph’s file.

The judges feel that the government can’t treat Joseph’s recommendation as a fresh one and therefore, his name should have been given preference than the two others. Their contention is that the government acted on the January recommendation while issuing the notification which mentions Joseph’s file no- 13011/01/2018-U.S.-I — similar to Indu Malhotra’s, and 13011/03/2018-U.S.-I as the file no. of Banerjee and Saran.

The other argument is that the past precedents show the date of one’s appointment as the High Court judge is the parameter taken into consideration while deciding the seniority list of the Supreme Court. The contention in this regard is also void. While Banerjee and Saran were elevated to the High Court on February 5 and 14 in 2002, respectively, KM Joseph was made a High Court judge on October 14, 2004. Also, according to the all-India seniority of HC judges, Banerjee is in the fourth position. She is followed by her SC colleague Saran. The list shows Joseph as the 39th seniormost judge in the country, according to the all-India seniority of the HC judges.

What is the convention?

According to the past precedents, the seniority in the Supreme Court is decided by the date when one was appointed as a judge in the High Court, not the Chief Justice of a High Court. In the case of incumbent CJI Dipak Misra, he was elevated to the High Court on January 17, 1996, whereas Justice Chelameswar was made a High Court judge on June 23, 1997. While Misra was made the Chief Justice of a High Court on December 23, 2009, Chelameswar was sworn-in as a Chief Justice of a High Court on May 3, 2007.

If the date of appointment as the Chief Justice was the factor, questions should have been raised when Justice Misra was made the Chief Justice of India on August 28, 2017. Interestingly, both Misra and Chelameswar had taken oath on the same day. While Misra was sworn-in as the CJI in the morning, Chelameswar was administered the in the evening.

Why the grey area?

As of now, there is no Memorandum of Procedure is in place on deciding the seniority list of the Supreme Court. However, one thing is clear that the seniority in the Supreme Court is determined by the date of appointment to the Supreme Court and in case if the date is same, the time of swearing-in is the factor that is taken into account for deciding the seniority list which is based on the years of experience at the High Court. Even if the experience at the High Court is same, the date of appointment as the Chief Justice could be a factor. In such a scenario, when there is no clarity, the entire system is open to vulnerabilities given that the issue will continue to rise in future. It can be decided only by finalising the Memorandum of Procedure, thus laying down a set of norms for judicial appointments and determination of seniority.

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