The Big Story: Stoking another face off

When the Union government finally cleared the elevation of Uttarakhand Chief Justice KM Joseph’s elevation to the Supreme Court last week, there was a belief that a controversy that seriously eroded the image of the judiciary has finally been put to rest. But on Saturday, it was clear that the story had another chapter that could potentially stoke another face-off between the executive and the judiciary.

A notification released by the Supreme Court announcing the swearing-in ceremony of Justices Joseph, Indira Banerjee and Vineet Saran placed Joseph in the third spot, which suggested that he would be considered junior to the other two in the list of apex court judges. Whether this will actually happen will be known when the judges take oath on Tuesday. But by convention, the appointment notification places judges in the order of seniority.

This raises the question of whether the Union government, having failed to scuttle Joseph’s elevation, is trying to deny him the seniority that he deserves.

Joseph had been recommended for elevation by the Supreme Court collegium in January. But the Centre returned his file, arguing that he was junior to several other High Court chief justices who were waiting for a call to the apex court. It also said Joseph’s parent High Court of Kerala is already adequately represented. Many speculated that the real reason for the government opposing his elevation was his judgment that struck down the Centre’s decision to impose President’s rule in Uttarakhand in March 2016. However, Union Law Minister Ravi Shankar Prasad denied that this was the case.

The other two judges on the list had been recommended in July, when the collegium reiterated Joseph’s elevation. Ideally, Joseph, by virtue of being recommended earlier, should be ranked higher in seniority to the other two.

Seniority plays an important role on several counts. It determines which judge will eventually becomes the chief justice. Even if the person doesn’t become a chief justice, he would have the opportunity to sit in the collegium by virtue of seniority. The collegium consists of the five senior-most judges on the bench.

If indeed Joseph is made junior to the other two, the matter is capable of giving way to another major controversy, as the executive meddling with the order of seniority will be seen as an attempt to modify the composition of the bench and interfere in the functioning of the court. This would be construed as a violation of judicial independence.

The larger issue, however, is the message that such a development would send: that a judge who delivers unfavourable orders would be victimised in some way for implementing the law of the land. Such a development would have to be dealt with as an attempt to undermine the rule of law itself.

There are several ways in which this decision could be justified by the Union government. First, the argument could be made that it is the date of appointment and not the date of recommendation that determines seniority. Since the warrant of appointment for all three judges came on the same day, and since Joseph is junior in terms of the date that he was made a High Court judge, the Centre could argue that it had only followed convention. But this would be hard to buy as the question here is more moral than legal. The matter has to be viewed in the context of the uneasiness the Centre has displayed in Joseph’s appointment to the Supreme Court.

Chief Justice Dipak Misra now has the opportunity to assert the independence of the judiciary by swearing Joseph in first. Anything less would mean ceding ground to the executive at a time when his reputation is already mired in controversy following the dramatic press conference by four senior judges in January.

The Big Scroll

Should the Supreme Court collegium have clubbed the decision of reiterating Joseph’s elevation with recommending other names?


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