The Supreme Court of India, Delhi.

Supreme Court: Justice KM Joseph’s Seniority - Storm In A Teacup Or Dangerous Precedent?

On Tuesday morning as the Supreme Court swears in three new judges it will put one controversy behind it only to be replaced with another. Both have to do with the appointment of Uttarakhand High Court Chief Justice KM Joseph to the apex court.

At first the government was opposed to the elevation of Justice Joseph, prompting the Supreme Court Collegium, or group of senior-most judges, to reiterate their selection. Last week, averting a constitutional crisis of sorts, the government finally notified Justice Joseph as a Supreme Court judge alongwith the appointment of Madras High Court Chief Justice Indira Banerjee and Odisha High Court Chief Justice Vineet Saran. But by listing Justice Joseph as third on the list the government sparked another controversy - this time over seniority. This led to judges of the Supreme Court lodging a protest on Monday with the Chief Justice of India Dipak Misra, according to a report by news agency PTI.

Describing the issue as “a storm in a teacup” former Attorney General Mukul Rohatgi said the Supreme Court judges have “no cause to be agitated.”

According to Rohatgi, seniority is determined by date of appointment to the High Court. Accordingly, Justice Joseph was listed third. Besides, the seniority issue does not matter as it will not deny any person the chance to become the Chief Justice of India, he said in an interview to BloombergQuint.

It’s a storm in a teacup as it is not a case where one could have pipped the other to become the chief justice of India. If that is not the case, I don’t think it matters. I don’t think it is correct for anybody, including sitting judges who may have raised this issue, to keep the controversy alive.
Mukul Rohatgi, Former Attorney General

However, Senior Advocate Sanjay Hegde said this move by the Government of India had the potential of setting a dangerous precedent.

“The Government should not in any manner change the order of seniority which was not intended by the Collegium. If the government of the day, while processing the recommendations of the Collegium, changes the order of seniority, it effectively gives them at a future date the power to determine who becomes the Chief Justice of India no matter what the Collegium, which has made the recommendations, thinks about the order of appointment. That is where it is truly dangerous,” Hegde explained in a discussion on BloombergQuint.

He added that by altering the order of seniority in this instance, the government may be sending a message to the rest of the judiciary.

Specifically in this case, the perception is that Justice Joseph is being punished by the government of the day for his judgment in the Uttarakhand case. The message may not only be for Justice Joseph; the message may be for also be for other members of the judiciary. Please stay within your bounds or otherwise we can make things inconvenient for you.
Sanjay Hegde, Senior Advocate, Supreme Court

Retired Chief Justice RM Lodha recommended remedial measures to correct the government notification. The notification could be “altered” if Chief Justice Dipak Misra succeeds in convincing the centre that the collegium’s recommendations have not been considered in its true spirit, he said to news agency PTI.

According to the PTI report, retired Chief Justice of India TS Thakur agreed that date of appointment as a High Court judge was the basis for determining the seniority of judges being elevated to the Supreme Court on the same day.

But, he pointed out, Justice Joseph’s name was recommended by the Collegium first.

As far as Justice Joseph’s elevation is concerned, he should be ranked senior to other judges because his name, I think, was sent earlier to the government for reconsideration. I am told his name was sent separately to the government for reconsideration and other two names followed his name.
Justice TS Thakur, Former Chief Justice of India (to PTI)

Hence, the general rule of initial appointment to the High Court would not apply in the case of two different recommendations, retired Justice Thakur added.

All the three newly appointed Supreme Court judges will be sworn in at 10.30 am on Tuesday by the Chief Justice of India.