The Modi Government knew the drill. They had to issue warrants of appointment to high court judges recommended for elevation by the Supreme Court collegium. But for the last seven months the Government has been sitting over the name of Justice K.M. Joseph, recommended for elevation by the collegium in January.
When he was finally elevated yesterday to the Supreme Court, the Government made sure that Justice Joseph would be junior to Justice Indira Banerjee and Justice Vineet Saran. The order of their elevation conformed to the All India Seniority List of High Court judges, a practice that had never been followed.
The Government had rejected the collegium’s recommendation earlier on the plea that Justice Joseph was 42nd in the All India List of seniority of high court judges and was junior to both Justice Banerjee and Justice Saran.
But when Chief Justice of India Dipak Misra was elevated to the Supreme Court, he was junior to several high court judges including Justice Jasti Chelameswar. Former CJI and the current Governor of Kerala P. Sathasivam was not even the chief justice of a high court when he was elevated to the Supreme Court. Indeed, seniority was never the only criterion for elevation to the Supreme Court.
In January the Supreme Court collegium while recommending name of Justice Joseph for elevation to the Supreme Court had recorded that he was “more deserving and suitable in all respects than other chief justices and senior puisne judges of high courts” for being appointed as judge of the Supreme Court of India
But having bypassed seniority till recently, why has the Government suddenly resorted to it while elevating Justice Banerjee, Justice Saran and Justice Joseph? And Having done so, will it stick to the principle of seniority in future?
Justice Joseph will be a Supreme Court judge till June, 2023 when he will retire at the age of 65.
Traditionally, the collegium has been recommending chief justices of various high courts for elevation. Some of them have held the office of the high court chief justice for barely a few months before getting elevated to the Supreme Court.
In this case, while Justice Joseph has been the CJ of Uttarakhand high court since July, 2014, Justice Indira Banerjee was appointed the CJ of Madras high court in March, 2017 and Justice Saran appointed CJ of Odisha high court in 2016.
Justice Joseph, the longest serving chief justice of any high court, was obviously senior to both as chief justice. The fact that the collegium had found Justice Joseph more deserving than others and had recommended his name ahead of others should also have weighed in with the Government while issuing the order of warrants of appointment.
But it is now clear that the Government’s only reason for delaying the appointment of Justice Joseph was to ensure that he ends up as junior to both Justice Indira Banerjee and Justice Vineet Saran, who were not considered for elevation by the collegium in January, when they first recommended the name of Justice Joseph.
It is true that Justice Joseph would not have become the CJI by seniority even if he had been elevated in January. But the conduct of the Government which first sat over his file for seven months, raised frivolous and flimsy objections and finally put him at the bottom of the list of the three high court chief justices elevated yesterday, raises suspicion about the real motive.
In January the Supreme Court collegium while recommending name of Justice Joseph for elevation to the Supreme Court had recorded that he was “more deserving and suitable in all respects than other chief justices and senior puisne judges of high courts” for being appointed as judge of the Supreme Court of India.
His name was reportedly recommended earlier in 2016 by the collegium headed by the then Chief Justice T.S. Thakur. But the Government chose to ignore it. CJI Thakur had also recommended the transfer of Justice Joseph to Hyderabad on health grounds. But the Government sat over the recommendation for the past two years.