Elevation of Justice KM Joseph: In Defence of the Supreme Court

Bar & Bench May 11 2018

Chinmoy Pradip Sharma

The growing rift in the relationship between the government and the Supreme Court has split wide open, with the decision of the government to return the Supreme Court’s recommendation for appointment of Justice KM Joseph.

The most significant factor for the decision is the seniority of Justice Joseph at the All-India level. In support, the government has placed reliance upon certain passages from the Second Judges’ Case and the Third Judges’ Case.

The first impression derived from these passages is that the rule of seniority is sacrosanct and any deviation will give a go-by to the ‘legitimate expectations’ of judges higher on the Seniority List, which is permissible only under extreme circumstances such as lack of representation of a particular High Court in the Supreme Court.

Thus, when these passages are read in juxtaposition with the lack of seniority coupled with adequate representation of Kerala High Court in the Supreme Court, the decision appears to be justified.

But here lies the catch.

On a closer look, it becomes evident that the passages from the judgments have been either been incompletely quoted or interpreted out of context. A comprehensive reading of these judgments projects a different story where merit and not seniority is the predominant consideration for appointment to the Supreme Court.

In fact, the Third Judges’ Case stipulates that a judge with outstanding merit deserves to be appointed to the Supreme Court regardless of the position in the Seniority List upon recording of reasons for the appointment. Interestingly, there is an express prohibition on giving reasons for not appointing the judges higher in the Seniority List to ensure that their future prospects for elevation are not hampered.

The Collegium’s Resolution dated 10th January 2018 has elaborated upon the relative merit of Justice Joseph over the other Chief Justices and senior Judges in the zone of consideration without going into the reasons for their non-appointment. This makes the Collegium’s recommendation fully compliant with the norms for appointment as set out in the Second and Third Judges’ Cases. Thus, the government’s observation that the recommendation is contrary to these judgments stands negated.

The government has laid emphasis on the ‘legitimate expectation’ (a term which appears in the quoted passes from Second Judges Case) of a judge who is higher on the Seniority List to be appointed. In this light, the government has stated that the appointment will also not be fair and justified to other more senior, suitable and deserving Chief Justices and senior Puisne Judges of various High Courts. This conclusion presumes the existence of a vested right for appointment on the basis of such ‘legitimate expectation’.

The use of the term ‘legitimate expectation’ in the Second Judges Case cannot be interpreted to mean that it will be applicable while considering names of judges for appointment to the Supreme Court affording a more senior judge with a right to be appointed prior to the one below in seniority.

Interestingly, the Second Judges’ Case has itself clarified that norms for appointment of judges do not confer any justiciable right in favour of anyone. More importantly, the term ‘legitimate expectation’ used in the Second Judges’ Case has been subsequently explained in the Third Judges’ Case to mean merely entertaining ‘hopes of elevation to the Supreme Court’. Therefore, the argument of ‘fairness’ which the government has sought to invoke is untenable.

Faced with such a decision of the government, what can the Supreme Court do? The obvious next step is to reiterate the recommendation unanimously and the government will then have to confirm the appointment without any further ado. This is just a short-term measure to salvage the current situation.

In the recent past, the government has been making frequent incursions into the Supreme Court’s domain of appointment of judges by resorting to delaying as a tool to scuttle them. In an unprecedented move, the government recently acted contrary to the Supreme Court’s recommendation by merely extending the tenure of an additional judge of a High Court who was to be made permanent. This was done without consulting the Supreme Court, which is inconceivable.

The Supreme Court has to undertake measures to nip these encroachments on its authority in the bud. The Second Judges Case, a judgment with great foresight, had anticipated a scenario where dilatory tactics could be used as a method to interfere with the process of judicial appointments.

The simple yet extremely effective solution proposed is ‘adherence to a time-bound schedule’ in the appointment process to ‘prevent any undue delay and avoid dilatory methods in the appointment process’. The judgment goes on to mandate that failure on the part of any constitutional functionary (which includes the government) to express its opinion within the specified period should be construed to mean the deemed agreement of that constitutional functionary and the President is expected to make the appointment in accordance with the recommendation.

Notwithstanding such processes being put in place for future recommendations, the days of conflict look far from over. With the government firmly standing its ground and the Supreme Court asserting its primacy, the two institutions are on a collision course.

While we do need to brace for impact as things stand, it is noteworthy to remember that the Supreme Court is well-equipped by the Constitution, precedent, and procedure to assert its independence and stand its ground. This is one of the core principles on which our nation was built. Attacking the foundation of our democracy is unwise, to say the least, and could have catastrophic implications for our future.


The author is a lawyer practising in the Supreme Court and is a keen observer of law, polity, and judicial process.
 Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the views of Bar & Bench. Bar & Bench does not take responsibility for the same.