Supreme Court itself has created and carefully nurtured a hierarchy among the judges.
Senior judges of the Supreme Court protested against placing Justice K.M. Joseph low in the seniority list, yet Chief Justice of India Dipak Misra administered him oath as per the orders of the President. Collegium politics, clearly, is at play here.
Despite Joseph’s name being recommended by the collegium first, it was placed after the two other appointees – Indira Banerjee and Vineet Saran.
Being the third judge to be administered oath makes Joseph 25th and the junior-most judge of the Supreme Court. However, he will move up the seniority ladder and retire as the 5th senior-most judge in 2023 with a spot in the powerful collegium.
If Joseph was administered oath before Banerjee and Saran, he would have retired as the 3rd senior-most judge and a collegium member.
Also read: Collegium unanimously decides to reiterate K.M. Joseph’s name, but with some other names
While the Supreme Court collegium consists of five senior-most judges of the court, the appointment of judges to high courts is signed by the top three judges. By missing a spot on that table, Joseph will not have a say in the appointment of any high court judges.
Does seniority make a difference?
The Chief Justice of India is picked based on seniority. The Chief Justice is only the “first among equals” since the court needs an administrative head for representation. All judges are the same in terms of judicial powers, according to the Constitution. Their rulings carry the same weight and are not conferred any special privileges for seniority.
Many former judges and senior members of the bar criticised the 12 January press conference for suggesting that important cases must be heard only by “senior judges” and not a “junior judge”.
They insisted that there is nothing “junior-senior” about the Supreme Court judges.
Also read: Joseph seniority: Upset, SC judges to raise matter with CJI
But it is the working of the court itself that has created and carefully nurtured a hierarchy among the judges. For starters, the collegium makes a big difference in the influence a judge holds during his tenure. Apart from that, seniority also determines when a judge would head a bench instead of being a “puisne” or a junior judge. The apex court sits mostly in benches of two-three judges and the senior-most judge is the presiding judge.
Even the seating arrangement of judges on the bench reflects this seniority issue. While the senior-most judge sits in the centre, the second goes to his left, third to the right, fourth to the left again, and so on. Note that Justices Chelameswar and Ranjan Gogoi sat in the same order even in the press conference.
Protest for Joseph’s seniority
The protest by senior judges about government affecting Joseph’s seniority is however on principle.
In Joseph’s case, since he is anyway not in line to become the CJI, the shift perhaps hardly matters. But not signalling protest on this might encourage the government to use Joseph’s case as precedent in future. And for someone who could be in line to be the CJI, this could prove detrimental.
Collegium at fault
The argument of senior judges is that since Joseph’s name was recommended first, he should have been appointed first.
The Modi government technically has not violated convention by suggesting that Joseph must be administered oath after Banerjee and Saran. He is after all junior to both the judges, and seniority is decided based on the date of appointment and not the date of recommendation of the collegium.
In fact, the blame for any “injustice” to Joseph lies squarely at the collegium’s doorstep for not doing its job properly.
Despite unanimously agreeing to reiterate Joseph’s name, the collegium stopped short of actually doing so. The final recommendation went the same day it recommended two other names.
Protecting the interests of the judiciary is primarily the judiciary’s job and not the government’s. So, to say the government must have somehow understood the collegium’s stand is not justified.
The only way forward is that the collegium should finalise the Memorandum of Procedure (MoP) and include all likely scenarios that could be a tricky spot for appointing judges. Although the court insists that the MoP has not yet been finalised for the last three years, the government has put up a copy in public domain for several months now.
The judiciary cannot remain silent to suit its convenience and later cry foul.
There is a lustre to Justice K M Joseph, as there was to Justice Jasti Chelameshwar. CJI material even if that honour was denied them.
Finally, Judgement done !