The elevation of the Uttarakhand Chief Justice KM Joseph to the Supreme Court has again run into controversy with some judges being anguished and shocked that the government had placed his name last in seniority of appointment list, despite his name being recommended and reiterated before the other two names on the eve of their being sworn in.
This seems to be the outcome of the tussle between the government and the judiciary over Mr. Justice KM Joseph's elevation and it is likely to continue despite the collegium recommending him for a second time last month.
A top government functionary said that the Centre is likely to sit on Mr. Justice Joseph’s file while clearing the appointment of two high court chief justices — Indira Banerjee and Vineet Sharan. ‘The law ministry had moved the file of the two judges to the Prime Minister’s Office for final clearance,’ the report quoted the government functionary as saying.
The Supreme Court collegium had recommended the elevation of Banerjee and Sharan and reiterated KM Joseph's name on July 16. According to the rules, the government has no choice but to approve the recommendation.
A five-member Supreme Court collegium of Chief Justice Dipak Misra and Mr. Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph had recommended Mr. Justice’s KM Joseph's name for elevation in January 2018. However, after sitting on the collegium decision for over three months, the government had rejected it saying that the proposal was not in accordance with the top court's parameters and there was adequate representation of Kerala in the higher judiciary.
In April, the Union Law Minister, Mr. Ravi Shankar Prasad, had written to Mr. Justice Mishra asking him to reconsider the decision to appoint Mr. Justice Joseph, while also saying that there were other more senior chief justices in high courts than him, who was at No 42 in high court judges seniority list.
‘The proposed appointment of Mr. KM Joseph as a judge of the Supreme Court at this stage does not appear to be appropriate,’ Mr. Prasad had said in the letter. ‘It would also not be fair and justified to other more senior, suitable and deserving chief justices and senior judges of various high courts'.
Mr. Justice Joseph, who turned 60 this June, has been the Chief Justice of Uttarakhand High Court since July 2014. He was appointed a permanent judge of the Kerala High Court on October 14, 2004 and had assumed charge of the Uttarakhand High Court on July 31, 2014.
He headed the bench that had quashed the Narendra Modi government's decision to impose President's rule in Congress-ruled Uttarakhand in 2016. The Supreme Court and the government have been sparring over judicial appointments ever since the Supreme Court struck down the Centre's National Judicial Appointments Commission (NJAC) bill in 2015, which sought to replace the collegium method of appointments. Although the two sides had then agreed on a Memorandum of Procedure, no progress has been made on the same, causing delays in filling vacant posts in courts.
Recently, the Supreme Court Judge Kurian Joseph had asked the Centre not to delay appointments in higher judiciary and clear the names in a time-bound manner.
‘As far as the Supreme Court is concerned, since it is an appointment from among the judges serving in the country for quite a long time, there must not be a delay of more than two weeks,’ Mr. Kurian Joseph, who has been vocal about the delay in elevation of Mr. KM Joseph to the apex court, said.
‘As far as appointment to high courts are concerned, once the high court has sent some request, or the high court collegium creates an appointment of a judge, to high court, there should not be a delay of three months’, he said. Mr. Justice MB Lokur had observed recently that over 2.5 crore cases are pending in district courts where as the HC have a pendency of 43 lakh cases and hence, the focus must be on district courts as the concentration on grassroots-level will help the litigants.
Meanwhile some Supreme Court judges are believed to have sought a meeting with Chief Justice to convey their anguish and disappointment at the action of the Central government in placing Mr. Justice Joseph last in seniority.
While, sources said, irrespective of his being number one or number three on the list, Mr. Justice Joseph would not have any chance of becoming the CJI — if the principle of seniority is followed.
Also, being number one on the list would put Mr. Justice Joseph in a position to head an independent bench in the Supreme Court earlier than at number three, sources said. As per sources, these Supreme Court judges, who are ‘disturbed’ and ‘shocked’, feel they have been let down by the CJI, for ‘not standing up to safeguard’ the sanctity of process of appointment of judges to the apex court.
The move is seen as a signal from the government that it will have the last word on the matter.