A Rebuttal to Centre's reasons for refusing Justice KM Joseph appointment

Murali Krishnan April 26 2018

The Centre has been sitting on Justice KM Joseph’s file since January 10 this year, when the Supreme Court Collegium deemed the Chief Justice of the Uttarakhand High Court as being worthy of elevation to the Supreme Court. And now, in a letter addressed to the Chief Justice of India Dipak Misra, Law Minister Ravi Shankar Prasad has disclosed the reasons for the same.

Below is a rebuttal of each reason given by the government on why it thought fit to stall the elevation of Justice KM Joseph.

In the All India High Court judges seniority list, Justice KM Joseph is placed at serial no. 42. There are presently eleven Chief Justices of various High Courts who are senior to him.

The Centre has quoted extensively from Second Judges case to buttress this point above point.

However, the issue of seniority of Justice Joseph which has been raised by the Centre was, in fact, considered extensively by the Collegium itself as is evident from its resolution recommending him. The resolution states,

“While recommending the name of Mr. Justice K.M. Joseph, the Collegium has taken into consideration combined seniority on the all-India basis of Chief Justices and senior puisne Judges of High Courts, apart from their merit and integrity.

Mr. Justice K.M. Joseph was appointed as a Judge of the Kerala High Court on 14th October 2004 and was elevated as Chief Justice of the Uttarakhand High Court on 31st July 2014 and since then has been functioning there. He stands at Sl. No.45 in the combined seniority of High Court Judges on the all-India basis.”

Despite all this, the Collegium found him a suitable candidate and chose to elevate him stating,

“The Collegium considers that at present Mr. Justice K.M. Joseph, who hails from Kerala High Court and is currently functioning as Chief Justice of Uttarakhand High Court, is more deserving and suitable in all respects than other Chief Justices and senior puisne Judges of High Courts for being appointed as Judges of the Supreme Court of India.”

While Seniority is indeed a criterion for elevation to Supreme Court, it is definitely not the only criterion. And the Second Judges case makes room for exception, something which the Collegium in its wisdom, exercised. To now harp on the same to stall the elevation is nothing but a superficial excuse.

In fact, the Supreme Court currently has a few judges on the Bench who are junior to many High Court judges. Justices Deepak Gupta, S Abdul Nazeer, Mohan M Shantanagoudar and Navin Sinha are such examples.

Moreover, it was the same government which had rejected the transfer of Justice KM Joseph from Uttarakhand High Court to Andhra Pradesh & Telangana High Court. Was that also on the basis of seniority?

The High Courts namely, Calcutta, Chhattisgarh, Gujarat, Rajasthan, Jharkhand, Jammu & Kashmir, Uttarakhand and other smaller High Courts namely Sikkim, Manipur, and Meghalaya are not represented in the Supreme Court at present.

The sanctioned strength of Supreme Court is 31. Currently, there are only 24 judges with 7 posts lying vacant. With the appointment of Indu Malhotra, the number would rise to 25. However, Justice RK Agrawal would retire on May 4, Justice Jasti Chelameswar on June 22 and Justice AK Goel on July 6.

This would mean that if no appointments are made during the summer vacation, then the strength of the court would be 22 with 9 vacancies. Now the question is with 9 vacancies in the offing (eight if Justice Joseph is elevated) who is stopping the Collegium and Centre from elevating judges from the afore-mentioned High Courts to Supreme Court to address the issue of lack of representation of High Courts?

Moreover, these are big words coming from a Government which has been sitting over files sent by Collegium for months together, leading to unprecedented vacancies in various High Courts. Lawyers of at least four High Courts (Orissa, Karnataka, Gujarat, and Calcutta) have already resorted to strikes to protest against the burgeoning vacancies. So much for Centre’s concern for High Courts!

Justice Joseph’s parent High Court is Kerala High Court. If he is appointed as a judge of the Supreme Court, the Kerala High Court, a comparatively small High Court would have two judges from the same parent High Court in Supreme Court.

This proposition seems irrational for a number of reasons. For one, the Kerala High Court, with a sanctioned strength of 47 judges is by no means a “comparatively small High Court.”

Secondly, the size of a High Court is not a criterion for appointment to Supreme Court.

For example, the Allahabad High Court with a sanctioned strength of 160 has only 2 judges currently in Supreme Court. The Bombay High Court with a sanctioned strength of 75 judges (less than half of Allahabad High Court) has three judges in Supreme Court. Likewise, the Delhi High Court which has a sanctioned strength of 48 judges, one less than Kerala High Court, also has 3 judges in Supreme Court. Thus, neither is the size of the High Court a criterion for elevation to Supreme Court nor is there a hard and fast rule that there cannot be more than one judge from the same High Court.

It may also be relevant to mention that there is no representation of Scheduled Caste/ Scheduled Tribe community for long.

This seems to be a classic case of “what aboutery” which this government seems to have mastered. As mentioned earlier in this article, the Supreme Court currently has 7 vacancies and the same will rise to 9 by July this year. Nobody is stopping the Collegium from recommending an SC/ST judge. It is baffling how stalling Justice Joseph’s elevation can help the same.

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