The controversy surrounding elevation of Justice KM Joseph hardly seems to die down.

It was expected that after the Central government cleared the appointment of Justice Joseph, the issue had been put to rest. But the new storm that is brewing is regarding the seniority of Justice Joseph.

Among the three judges whose names were cleared on the same date, Justice KM Joseph’s name is the last in the list of swearing-in.

Justice Indira Banerjee is at the top of the list followed by Justice Vineet Saran and then Justice KM Joseph.

This would make Justice Joseph junior to Justice Banerjee and Justice Saran insofar as the determination of seniority at the Supreme Court is concerned.

This has come as a shocker for many since Justice Joseph’s name was recommended by the Collegium on January 10 this year. The Centre had sat it on it for a considerable period of time before sending it back to the Collegium. The Collegium then deferred its decision on at least three occasions before it reiterated its decision on July 16. The same day, it recommended the appointment of Justices Banerjee and Saran to Supreme Court but by way of a separate resolution.

The Central government acted on these three names and issued notification of their appointment on the same date, August 3.

Subsequently, the Centre has clubbed the three for the purpose of swearing-in while relegating Joseph J. to the bottom of the list.

Now the three of them are set to take oath on August 7.

Seniority at Supreme Court

The determination of seniority at the Supreme Court is still an aspect which has many grey areas given that it is governed by convention than any settled law.

One thing is clear – the date of appointment to the Supreme Court is what determines the seniority at the Supreme Court. However, what if two or more judges are appointed on the same day?

According to many, the seniority is then determined based on the time of swearing-in which itself is decided based on the years of experience at the High court.

If the experience at the High Court is also same, the date of appointment as Chief Justice of High Court could be a relevant factor.

A judge directly elevated from the Bar would rank lower than those from the Bench.

A good case in point explaining the above scenario can be found with respect to four sitting judges who were appointed to Supreme court on the same day – Justices AM Khanwilkar, DY Chandrachud, Ashok Bhushan and L Nageswara Rao.

The four of them were appointed on May 13, 2016.

So how did the seniority come to be determined? Justice L Nageswara Rao was elevated directly from the Bar. Hence, he became junior to the rest of the three.

Justice Ashok Bhushan was appointed High Court judge in the year 2001 while Justices AM Khanwilkar and DY Chandrachud came to be appointed to High Court in the year 2000. That made Justice Bhushan junior to Justices Khanwilkar and Justice Chandrachud.

And now comes the interesting part. Justice Khanwilkar and Justice Chandrachud were appointed judges of High Court on the same day, March 29, 2000.

However, Justice Khanwilkar became Chief Justice of a High Court on April 4, 2013 while Chandrachud J. became Chief Justice of a High Court on October 31, 2013. This could have been a factor which placed Khanwilkar J above Chandrachud J. in seniority.

Who determines the seniority?

But who determines who should be sworn-in first? Is it the Collegium or the Central government? This is another area of ambiguity because proceedings of the Collegium were almost completely opaque till last year when the Supreme Court decided to publish the same on its website.

Even then, the resolutions published till date don’t speak about seniority. Moreover, only one judge has been appointed to the Supreme Court since then, Justice Indu Malhotra.

Now coming to the present case of Justice Joseph, the Collegium had recommended Justice Joseph’s name on January 10. It was reiterated by the Collegium on July 16, the very same day when Justice Banerjee and Saran were also recommended. What is noteworthy is that these were two different resolutions, one reiterating Justice Joseph and the other recommending Justice Banerjee and Saran. None of the resolutions prescribed any order of seniority in express terms.

The Centre notified all these three appointments on August 3. Interestingly, it also subsequently communicated to the Supreme Court, the order of precedence for swearing-in of the three judges where Justice Joseph’s name is in the third place.

Now how did the Centre arrive at such a decision? The easiest answer for the Central government is to point at seniority based on appointment to High Court.

Justice Indira Banerjee became a judge of the High Court on February 5, 2002. Justice Vineet Saran was appointed to High Court on February 14, 2002. Justice KM Joseph was, however, elevated to the Bench only on October 14, 2004.

The Centre can very well say that since all the three files were received on the same day, i.e. July 16, they were processed together and seniority was decided based on the date of elevation to High Court as is the established principle.

In the absence of any express mention regarding seniority in any of the collegium resolutions, the only claim Collegium can lay is that since July 16 resolution was only a reiteration of the January 10 recommendation, and the reiteration was done separately, the Centre should not have clubbed the three names.

Instead, it should have appointed Joseph J. first and then Banerjee J. and Saran J.

Finalise the Memorandum of Procedure

But who gives effect to the convention, the Centre or the Collegium, is a question which needs to be answered. Also, is there is a scope for breaking away from established convention. Importantly, what exactly is the settled convention?

These issues will continue to arise in the future if the governments which come to power at the Centre is inclined to interfere with the judiciary. It can be resolved by finalising the Memorandum of Procedure (MoP) laying down the nitty-gritty with regard to judicial appointments and determination of seniority.

Finalising the MoP addressing these issues is thus the need of the hour.

Murali Krishnan is Associate Editor at Bar & Bench. He tweets @legaljournalist.