The appointment of Justice KM Joseph as a Supreme Court judge has been a long-drawn affair with many questions raised and much disgruntlement expressed along the way.
On March 27, 2016, the Centre imposed President’s Rule in the state of Uttarakhand, citing a constitutional breakdown in the wake of a rebellion in the ruling Congress party. Then President Pranab Mukherjee signed a proclamation dismissing the Congress government headed by Harish Rawat and placed the assembly in suspended animation on the recommendation of the Union Cabinet.
The imposition of President’s rule was enforced in keeping with that Article of the Constitution that we hear about usually after a round of great political strife – Article 356. According to it, “President’s rule can be imposed in a state if a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the Constitution.”
In the following weeks, the Uttarakhand High Court quashed the order of the central government while also slamming the Centre for planning to attempt the revocation of President’s Rule and installing a BJP government before the High Court’s verdict. The Chief Justice had then said that the Court was “pained” by the actions of the central government and that instead of exhibiting the required impartiality, was acting like a “private party.” The Chief Justice had asked the Centre then, “How can you think of playing with the Court? What is it [attempted revocation of Article 356 prior to the Court’s verdict] but a travesty of justice?”
That Chief Justice was Justice KM Joseph. He, along with Justices Indira Banerjee and Vineet Saran, took oath as Supreme Court Judge earlier today, and importantly, not in that order. The matter of this assize is the alleged “downgrading” of Justice Joseph’s seniority as he was elevated into the Supreme Court as Judge. You are listening to Moneycontrol.
THE CONTROVERSYThe appointment of Justice KM Joseph as a Supreme Court judge has been a long-drawn affair with many questions raised and much disgruntlement expressed along the way. Let’s get to the facts first.
- On January 10 earlier this year, the Supreme Court collegium (more on this later) sent the names of Justice KM Joseph and Senior Advocate Indu Malhotra for elevation as SC Judges to the government.
- The Centre sat on its decision for over three months which invited criticism from senior judges in the collegium as well as opposition parties as it was seen as “revengeful” for Justice Joseph’s quashing of the President’s Rule imposed in Uttarakhand
- Senior judges in the collegium wrote to the Chief Justice of India (Justice Misra) seeking immediate intervention as there was a growing impression within the community that the independence of the judiciary was at peril and that the judiciary was buckling to the pressures exerted by the executive.
- On April 27, Law Minister Ravi Shankar Prasad wrote to the collegium asking it to reconsider its recommendation of Justice Joseph saying it was in “violation of the Supreme Court’s parameters on seniority and merit.” The government also pointed to “adequate representation for the Kerala High Court – which is Joseph’s parent High Court – in the apex court, and lack of representation of some other High Courts to request for reconsideration of the recommendation.
- On the 21st of July, the collegium reiterated Joseph’s name and added two more to the list – Chief Justice of the Madras High Court, Indira Banerjee, and Chief Justice of the Odisha High Court, Vineet Saran.
- Last week, on the 3rd of August, the central government issued a notification appointing the three Judges as per the recommendations of the collegium.
- And then there was the rub – Justice Joseph’s name was placed third on the list, making him junior to the other two judges even though Joseph’s name was recommended first.
This issue of first refusing to consider, and then relenting only to tinker with the seniority of a judge who had ruled against the central government, and therefore the role of the executive in what is the judiciary’s job – that of appointing and elevating judges to the Supreme Court – is the controversy that is currently playing out. One of the senior-most judges in the collegium, on condition of anonymity, has called this an instance of “clear interference” by the Centre. For the record, Justice Joseph was placed at the 39th position in the all-India seniority of High Court Judges, and Justices Banerjee and Saran at the fourth and fifth positions respectively. The government claims that this “downgrading” was “backed by precedent” which gives primacy to the all-India seniority of High Court Judges, “a time-tested principle.” The government cited the case of Justice Dipak Misra (current CJI) and Justice Chelameswar (now retired) who were both sworn in on the same day as SC judges but Justice Misra got seniority owing to his seniority on the list, which is decided solely on the time spent at the High Court. We must also note here that Justice Joesph is the longest-serving Chief Justice of any High Court in India. Apparently, neither the time of elevation to Chief Justice – Joseph was elevated to CJ level before either Banerjee or Saran – nor the duration spent as Chief Justice contributes to the all-India seniority rank. Countering that argument, sources in judiciary told NDTV "seniority is not the only criteria for elevation to the Supreme Court", and that's why the collegium rejected the government's contention on seniority and stood firm by its recommendation of Justice Joseph.
This has opened up many questions: Is this rank system always followed? How is seniority decided in the courts? Is this a case of executive overreach? What are the loopholes in judicial appointments? Are some justices justified in expressing their disgruntlement to the CJI about this? And most of all, what is this collegium we have been hearing about so much? We’ll try and answer all these questions today.
The Supreme Court Collegium consists of five seniormost Judges of the Supreme Court, including the Chief Justice of India. The collegium considers the elevation of Chief Justices/ Judges of High Court to Supreme Court, elevation of Judges of High Court as Chief Justices and elevation of Judges. In case of a difference of opinion, the majority view prevails. Conventionally, if the collegium decides to recommend a Justice’s name for elevation, the government cannot stop the appointment, but can only delay it.
The collegium system evolved through a series of three judgments of the Supreme Court that have come to be called Three Judges Cases – technically, two cases and an opinion. Essentially, these cases speak of judicial independence and about who has “primacy” in the appointment and elevation of Judges. The First Case (SP Gupta v. Union of India – 1981) declared that the “primacy” of the CJI’s recommendation to the President can be refused for “cogent reasons,” thus bringing about a major shift in favour of the executive having primacy over the judiciary in judicial appointments. This held for the next twelve years until the case that ushered in the collegiate system. The Second Case (Supreme Court Advocates-on Record Association vs Union of India – 1993) was heard by a nine-judge bench decided that judicial appointments were an affair concerning the judicial family and that the executive could not have an equal say in the matter. The majority verdict – essentially overturning the Sp Gupta Judgment – was written by Justice JS Verma, and declared, “Should the executive have an equal role and be in divergence of many a proposal, germs of indiscipline would grow in the judiciary.” It was a landmark judgment but certainly not unanimous, with one Justice dissenting and another suggesting that the CJI need not restrict himself/herself to consulting with just two judges (as mentioned in the ruling) and can consult any number of judges, or none at all. Over the next five years, there was considerable confusion about the roles of the CJI and the two judges, with CJIs sometimes taking unilateral decisions without consulting two colleagues. The Third Case aimed to clear this. In 1998, then President KR Narayanan issued a presidential reference to the SC as to what the term “consultation” within the context of judicial appointments and transfers, meant. The collegium, as we know it now, was a result of this case – in the case of the SC, CJI and his four seniormost colleagues. The power of appointment of judges to higher judiciary – a power considered vested with the Executive after the First Case – was thus effectively wrested by the Judiciary.
The collegium, while emphasising the Judiciary’s primacy over the Executive’s, was/is not without its critics. Justice PN Bhagwati once described it, “a sacred ritual whose mystery is confined only to a handful of high priests.” Robes, language that could just as easily be mistaken for incantations, wise old men and barely a woman in sight... it’s not that much of a stretch of the imagination. Concerns have been raised about the collegium being a closed-door affair without a formal and transparent system in place. It has also been noted that its field of choice was limited to the seniormost judges from the High Court, and in the process, overlooked several talented junior judges. To address these, on the 3rd of October last year, the collegium published a resolution promising to make public on the court’s website, among other things, its choices of candidates for elevation to the SC accompanied by the reasons underpinning the collegium’s choices. This was perhaps a direct response to what happened in 2015 when the Constitution was altered, through the 99th amendment, and when the collegium was sought to be replaced by the National Judicial Appointments Commission – a body comprising members of the judiciary, the executive, and the general public. In what has now come to be called The Fourth Case (2015), the Court struck it down. It ruled that the primacy of the judiciary was a part of the Constitution’s basic structure, and that this power could not be removed even through a constitutional amendment.
Why am I saying all this? Why should we even bother with all this? It is important to know the context of a story for us to truly appreciate a story. And the tussle between the executive and the judiciary is at the very heart of this story.
HOW IS SENIORITY DECIDED IN THE SUPREME COURT?
Elevation to the status of CJI depends on seniority of eligible candidates, with the most senior being sworn in (like we mentioned earlier re Justices Misra and Chelameswar). A judge who takes oath earlier becomes senior to another who takes oath later. The collegium – though famously opaque in its dealings for the large part of its existence – is known to consider a few things before recommending a name to the government: merit, suitability, seniority. It also attempts to ensure balanced representation of various high courts.
As Sushant Singh, writing for the Indian Express, noted: “Justice Joseph was found to be “more deserving and suitable in all respects than other Chief Justices and senior Puisne Judges of High Courts for being appointed as Judges of the Supreme Court of India”. Some judges of the Supreme Court feel that the established procedure for determining seniority of judges has been violated by the government, to deliberately slight the judiciary, a position which should not be acceptable to the CJI. While none of these three judges are in a position to become the CJI, if the principle of seniority is followed while appointing the CJI, it does affect the membership of the Collegium. If more senior to his two colleagues, Justice Joseph would have started heading benches earlier.”
Senior advocate Sanjay Hegde, warned that this could set a dangerous precedent, and said, “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.”
Mukul Rohatgi, former Attorney General, took an expectedly differing view. “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,” he said.
Calling August 7 a "black day" for the Indian judiciary, senior Congress leader and advocate Kapil Sibal told ANI, "The government has given the message that if a judge doesn't make a judgment in their favour, he may be treated the same. I believe that this day will be seen as a 'black day' in the history of Indian judiciary. This is the arrogance of the government."
JUDICIARY VS EXECUTIVE
Speaking of “black days” for the judiciary and the arrogance of the government, we turn to the 1970s, when Justice Ray was appointed CJI by then Prime Minister Indira Gandhi. Justice Ray superseded three other senior judges at the time – Grover, Hegde, Shelat – and was appointed because the government wanted more “forward-looking judges” – a euphemism for compliant judges. Justice Ray, famously, also gave the 1975 ADM Jabalpur v Shukla judgment – the habeas corpus case which stated that even the Fundamental Right to life stood abrogated during Emergency. Justice Khanna paid the price for having written dissenting opinions against the government’s stand. He was overtaken by Justice Beg – an Indira Gandhi loyalist – to the top spot. The current NDA government does not come out of this pure as the driven snow either. Judge Shakdher’s transfer from the Delhi HC to Madras HC is one example. Shakdher had rapped the government for offloading Greenpeace activist Priya Pillai from an aircraft to London in 2015. Justice Shakdher had set aside the government's decision, saying it was "illegal" and that the right to criticise cannot be "muzzled" by the state. Justice Shakdher had said that Pillai has a fundamental right to travel abroad and also she has every right to hold a different opinion on development policies and this cannot be the sole ground to restrict her movement.
TROUBLE AT THE TOP
Only recently, in January, an unprecedented scene took place when the four senior most judges after the CJI decided to come out in public with complaints against CJI Dipak Misra. “Justices Jasti Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph, the four-most senior judges in the country after Misra, openly protested the bypassing of established traditions in the court by the Chief Justice in assigning cases to benches. They also raised a flag against the way the court has dealt with finalising the new memorandum of procedures, guidelines that guard the appointment of judges to the Supreme Court and High Courts,” reported Scroll.They also stated in a letter that the Chief Justice had violated conventions in his role as the master of the roster. Scroll went on, “The judges confirmed they had also taken up with the Chief Justice the case of CBI judge Brijgopal Harkishan Loya. Loya was presiding over the case relating to the fake encounter of Sohrabuddin Sheikh, in which Bharatiya Janata Party president Amit Shah was an accused. Loya died in December 2014. In November, the Caravan magazine brought out startling revelations that raised doubts on whether Loya’s death was natural. Since then, there have been demands for an independent probe into the death.”