Official data shows there are over 45 HC judges who are senior to Deepak Gupta, the most recently-appointed judge of the Supreme Court.
New Delhi: In trying to build a case against the elevation of Uttarakhand High Court Chief Justice K.M. Joseph, the Modi government hinted at the fact that the Supreme Court Collegium disregarded seniority and regional representation while recommending him.
However, the government, since it came to power in 2014, has accepted the collegium’s recommendations on elevation of HC judges and chief justices to the Supreme Court even though they didn’t fulfill the government’s latest standard: seniority and regional representation.
Official data shows that currently there are over 45 HC judges who are senior to Deepak Gupta, the most recently-appointed judge of the Supreme Court.
Gupta who became a judge of the Uttarakhand HC in October 4, 2004 was elevated in the last round of appointments on 17 February 2017 while many judges who are senior to him nationally are not even CJs in high courts.
Even this wasn’t the only instance in which the government overlooked the seniority and regional representation grounds.
At least 39 serving HC judges, some of who have been appointed CJs or are working as ‘acting CJs’, were senior to justices Mohan M. Shantanagoudar and Abdul Nazeer — both from Karnataka HC — when the duo was elevated to the apex court on 17 February 2017.
Similarly, 14 current HC judges are senior to SC judge Sanjay Kishan Kaul.
Justice Navin Sinha was elevated to the SC disregarding the fact that at least 24 judges in various HCs were senior to him in all-India seniority.
The government is known to be unhappy with Joseph after a hard-hitting judgment by the Uttarakhand High Court bench headed by him set aside the order imposing President’s Rule in the hill-state in 2016. This is seen as the reason for the government not clearing Joseph’s transfer to the High Court of Andhra Pradesh and Telangana for over a year.
ThePrint reported last week that the collegium had anticipated the government would ask it to reconsider Joseph’s name and worked on a plan to counter the move.
Only the top nine judges of the apex court were appointed before the Narendra Modi government came into power. Of the 25 existing judges, 14 were appointed during this government in five batches. It is also the second time that the government has expressed discontent with a potential appointee — the first was against elevating senior advocate Gopal Subramanium as an SC judge.
Collegium policy
According to judicial appointment norms, “merit is the predominant consideration” for recommending a name for appointment as an SC judge and not seniority or regional representation.
These factors are relevant but are not sole criteria for selection.
“Where there is outstanding merit, the possessor thereof deserves to be appointed regardless of the fact that he may not stand high in the all India seniority list or in his own high court,” the norms say.
The appointment norms also say that “when the contenders for appointment to the Supreme Court do not possess such outstanding merit but have, nevertheless, the required merit in more or less equal degree, there may be reason to recommend one among them because, for example, the particular region of the country in which his parent High Court is situated is not represented on the Supreme Court bench”.
Seniority of Justice Joseph
Justice Joseph ranks 45th in the all-India seniority list and ranks last among the 24 CJs of high courts across the country. However, he is currently the longest-serving chief justice of a high court and has been the CJ of Uttarakhand HC since 2014.
In fact, no other chief justice apart from Joseph has been appointed before 2016. If appointed to the apex court, he will serve until July 2020, a tenure of over two years.
But the collegium chose Joseph over any other high court judge for elevation to the apex court, overlooking the seniority aspect.
This practice is not new to the collegium.
For instance, Justice V.K. Tahilramani of the Bombay High Court, the acting chief justice, ranks third on the all-India seniority list and has been a judge since June 26, 2001.
D.B. Bhosale, the chief justice of Allahabad High Court; S.J Vazifadar, CJ of Punjab and Haryana High Court; Indira Banerjee, CJ of Madras High Court, N.H. Patil, judge of the Bombay High Court are also in the same league.
All of them are still to be elevated to the SC.
Regional representation
One of the factors in appointing judges in SC is also to have an adequate and proportionate representation of every high court through its judges in the apex court.
The government has pointed out that appointing Joseph will not ensure proportionate regional representation from Kerala High Court — his parent high court since there is already a judge from Kerala — Justice Kurian Joseph.
However, in February 2017, two judges from the Karnataka High Court — Justices Shantanagoudar and Nazeer — were elevated to the apex court on the same day, overlooking the regional representation aspect.
Ideally, high courts with more number of judges like Allahabad (160 sanctioned judges) should have greater representation in the apex court than smaller HCs like Gauhati (24 sanctioned judges) but that is not the case. While two judges whose parent HC is Allahabad are currently in the SC, the Bombay High Court, the second biggest HC, has sent three to the apex court.
Currently, Delhi, Andhra Pradesh & Telangana, Karnataka and Gauhati high courts have two judges each in the top court.
Madhya Pradesh, Kerala, Himachal Pradesh, Madras, Punjab & Haryana, Patna, Orissa high courts have one judge each. Six high courts, including Rajasthan, Calcutta, Jammu & Kashmir and Gujarat have no representation on the SC bench.
The collegium is known to ensure representation from minority religions, scheduled castes apart from regional representation. However, currently there is one Christian and Muslim judge, only one female judge and no Dalit judges in the apex court.
BJP govt had formed National Judicial Appointment Commission with the act being approved in both houses of Parliament and assented by the President.But SC has the temerity to bypass the parliament and quashed the NJAC act.It shows how far the Judiciary goes to support nepotism in appointment of Judges to courts in India.The Courts couldn’t bypass the parliamentary democracy and implement its own agenda of one up man ship.Courts are constitutional entity of any democracy and should be under the limits of constitution.But in the case of NJAC is goes beyond the constitution when it quashed the NJAC act passed by Parliament of India.Conflict between Judiciary and Legislative starts from that day.Now SC wants to pack up courts with Congress man in all courts which the Govt knows and apprehending the nonsense of a Congress Judiciary which will make hell to Govt and block all its good deeds acts works and governance stopped from appointing the recommendations of SC ,Just a month back 4 SC judges revolted agaisnt CJI of SC.But that de=didnot deter the SC from working like dictator in a democracy.
The article is highly perfidious and anti national.In Judiciary the religion caste creed race is never seen and should not be a measurement.Why JUDGES are picked up from any religion n his religion basis.It is beyond imagination.Judges must be qualified to have neutrality when they hear cases and pronounce orders.Like army the judiciary is a HOLY COW.Now anti national web magazine started such canards to insult judiciary and Govt of India