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SC Collegium Asserts Itself on Justice K.M. Joseph, But Concerns Remain

The collegium’s decision to restrict its current choice to recommending just three judges, while there are nine vacancies in the apex court, raises a few questions about the process of appointing judges.

New Delhi: In a significant decision on July 16, the Supreme Court collegium consisting of the Chief Justice Dipak Misra, and four senior-most judges after him – Justice Ranjan Gogoi, Justice Madan B. Lokur, Justice Kurian Joseph and Justice A.K. Sikri – reiterated its January 10 recommendation to the Centre for the appointment of Justice K.M. Joseph, Chief Justice of the Uttarakhand high court, as a judge of the Supreme Court.

In another resolution adopted on the same day, the collegium also recommended the elevation of Justice Indira Banerjee, Chief Justice of the Madras high court, and Justice Vineet Saran, Chief Justice of the Orissa high court as judges of the Supreme Court.

The collegium has added that while recommending the names of Justice Banerjee and Justice Saran, it took into consideration, apart from their merit and integrity, their combined seniority on an all-India basis of chief justices and senior puisne judges of high courts. Justice Banerjee stands at No. 4 and Justice Saran at No. 5 in the combined seniority of high court judges on an all-India basis, the resolution underlines.

The consideration zone

The resolution tacitly admits that it has not been able to recommend names to fill all nine vacancies in the Supreme Court at present. Against the sanctioned strength of 31 judges, the Supreme Court is presently functioning with 22 judges, leaving nine clear vacancies. The resolution adds that “after extensive discussion and deliberations”, it considered only these three persons as more deserving and suitable in all respects than other chief justices and senior puisne judges of high courts for elevation to the Supreme Court.   

The collegium’s inability to recommend names to fill the remaining six vacancies at this juncture may raise questions on whether it is an effective mechanism to ensure the timely filling of vacancies. After all, the Supreme Court does not hesitate to grill the government whenever instances of vacancies not being filled in other judicial forums like the high courts and the National Green Tribunal are brought to its notice.   

The collegium’s observation that it considered only three judges to be more deserving and suitable in all respects than others in the consideration zone may be construed as a reflection on others who may fulfil the criteria for eligibility for appointment as judges of the Supreme Court. 

The comparative assessment of the candidates in the consideration zone may be useful to place them in the order of seniority by which the collegium wants them to be appointed as judges of the Supreme Court. But it is a dubious criterion to deny the opportunity to be appointed as judges of the Supreme Court in time when there are suitable candidates in the consideration zone.   

If the excuse of the collegium is that there are no sufficient suitable candidates in the consideration zone, it is a serious reflection on its decision-making process. The collegium ought to make public the names of eligible candidates in the consideration zone to get an idea of whether it is at all possible to fill the remaining six vacancies in the near future. 

The rising number of vacancies in the high courts is another worry and the collegium perhaps thought it wise not to deplete the current working strength of the high court judges further, by elevating six of them to the Supreme Court. There are currently 247 vacancies of the posts of permanent judges and 164 vacancies of the posts of additional judges in the high courts.

The collegium’s decision to restrict its current choice to just three, while there are nine vacancies, however, is likely to disappoint those who expected the collegium to take the initiative to fill vacancies in the Supreme Court in time. Today’s resolutions also raise the question whether the collegium is in dire need of a full-time secretariat to compile data on eligible candidates in the zone of consideration for appointment as Supreme Court judges. At present, it is the Supreme Court’s registry which assists the collegium and it is not clear whether its role in this regard matches up to expectations.

The collegium’s decision shows that it has preferred to consider the all-India seniority of judges, rather than the date of their appointment as the chief justices of high courts, as far as judges other than Justice K.M. Joseph are concerned. Justice K.M.Joseph was appointed as a judge on October 14, 2004, whereas the dates of appointment of Justices Banerjee and Saran are February 5, 2002, and February 14, 2002, respectively. 

Still, Justice K.M. Joseph is likely to be senior to both Justices Banerjee and Saran within the Supreme Court as he was recommended for appointment earlier in view of his outstanding merit. This is one reason why the collegium adopted one resolution to reiterate its recommendation on Justice K.M. Joseph and another to recommend the appointment of the other two, so that his position in the all-India seniority of high court Judges is not compared with that of others, to deny his seniority within the Supreme Court.

A file photo of Justice K.M. Joseph. Credit: PTI

By recommending Justice Saran along with Justice Banerjee, the collegium has made it clear that it has considered both their all-India seniority and the need to appoint judges from those states which currently have inadequate representation in the Supreme Court. Justice Banerjee’s parent high court is Calcutta high court, while that of Justice Saran is the Allahabad high court. While the Calcutta high court is currently unrepresented in the Supreme Court, Justice Ashok Bhushan is the only judge who hails from the Allahabad high court at present.

The collegium’s decision not to recommend the filling of all nine vacancies in one go also stems from its difficulty to separate the all-India seniority of judges from their merit in the same list. Separate resolutions helps the collegium to accord seniority within the Supreme Court to candidates who may have merit but not seniority over other eligible candidates. But as the collegium does not meet frequently, it results in an undue delay in the filling of vacancies in the Supreme Court. The last meeting of the collegium was held in May, but it could not finalise its decision on reiterating its recommendation of Justice K.M. Joseph then.

Collegium accedes to Centre

While the five-member collegium may appear to have asserted itself in the case of Justice K.M. Joseph, it acceded to the Centre in the case of the appointment of the Delhi high court chief justice. The Centre returned the name of Justice Aniruddha Bose, the senior-most puisne judge of Calcutta high court, whom the collegium had recommended for elevation as the chief justice of the Delhi high court on January 10, for its reconsideration. The Centre cited Justice Bose’s lack of experience as a chief justice to head a prominent high court like Delhi for returning the collegium’s recommendation. The Centre’s reason is untenable because there are precedents to show that judges other than chief justices have been appointed as chief justice. Yet, the collegium accepted its reservations, and recommended the transfer of the Chief Justice of Patna high court, Justice Rajendra Menon, to Delhi high court on account of “administrative exigencies”.

The three-member collegium (comprising the CJI Dipak Misra, Justice Gogoi and Justice Lokur) simultaneously recommended the elevation of Justice Bose as the chief justice of Jharkhand high court, instead of Delhi high court.

The three-member collegium, through another resolution, appointed the acting chief justice of Delhi high court, Justice Gita Mittal, as the chief justice of the Jammu and Kashmir high court. It also appointed the acting chief justice of the Kerala high court, Hrishikesh Roy, who hails from Gauhati, as the chief justice of the Kerala high court.

Consequent upon the elevation of Justice Banerjee to the Supreme Court, the collegium recommended Justice V.K. Tahilramani, the senior-most judge from the Bombay high court, for the position of the chief justice of the Madras high court. 

The collegium also recommended the appointment of Justice M.R. Shah, senior-most judge of the Gujarat high court as the chief justice of the Patna high court. Interestingly, the Modi government sat on the collegium’s recommendation to transfer Justice Shah from Gujarat to Madhya Pradesh since 2015, and the collegium was helpless in reiterating it, as it was not returned for reconsideration. Today’s resolution, therefore, marks a victory for the Centre in its ongoing turf battle with the collegium. 

The collegium also recommended the appointment of Justice K.S. Jhaveri as the chief justice of the Orissa high court. Justice Jhaveri is a senior puisne judge from the Gujarat high court, and has been functioning on transfer in the Rajasthan high court. 

In every recommendation to appoint a chief justice, the collegium took into consideration whether the appointee’s parent high court is already represented among the chief justices of the high courts, and if so, whether it is adequate, considering the approved strength of the judges of that court. Thus it reasoned that none of the chief justices of the high courts hail from Delhi, Gauhati and Gujarat presently, while Bombay, despite being a high court with an approved strength of 94 judges, has only one chief justice, namely, Justice D.B. Bhosale, the chief justice of the Allahabad high court who retires on October 23 this year.

It remains to be seen whether the Modi government acts on the collegium’s latest recommendations in time, and cedes to it the primacy in appointing judges as envisaged in the Supreme Court’s judgments in the Second, Third and Fourth Judges cases