Row Over K M Joseph’s No 3 Position In Oath-Taking Is More Evidence Of Rot In Judiciary

The row over the order of precedence in the forthcoming oath-taking ceremony of three recently-elevated Supreme Court judges – Justices Indira Banerjee, Vineet Saran and K M Joseph – shows how deep the rot in the judiciary goes. A Times of India report today (6 August) suggests that some senior judges of the court may be lodging a protest with Chief Justice Dipak Misra over relegating Joseph to the last position while taking the oath, thus making him junior to the other two.

This is much ado over nothing. Even in terms of their judicial careers, both Banerjee and Saran were made high court judges a full two years before Joseph, who is currently Chief Justice of the Uttarakhand High Court.

While it is equally true that Joseph became Chief Justice at a high court earlier than Banerjee and Saran, it is the one who was senior in terms of becoming a high court judge who gets precedence in oath-taking. The current Chief Justice pipped Justice J Chelameswar to the top post precisely because he made it as high court judge before the latter, even though the latter became Chief Justice ahead of Misra.

The dissident judges who believe Joseph should take the oath before the other two base their argument on the fact that his name was recommended as early as January 2018, but the government had raised objections to his elevation on grounds of lack of seniority (he was 42nd in the list by seniority among high court judges).

The problem with this argument is that you either stick with the seniority principle all through, or you don’t. If Joseph was picked because he was simply a very good judge – and we don’t know that in the absence of any formal selection criteria – then it follows that most elevations should also follow the merit principle. One can’t accept seniority as a rule when it suits you, and discard it when it doesn’t.

It is also possible to insinuate that the government chose to put Joseph last out of spite, since he was the one who blocked Bharatiya Janata Party from forming a government with the help of defectors in Uttarakhand.

One can suspect a government’s motives as much as one wants, but can one then not equally suspect the judiciary’s motives in how its chooses judges? After all, can we not ask why it is necessary for one judge Joseph to be replaced with another Joseph in recent years? Justice Cyriac Joseph retired in January 2012, and Justice Kurian Joseph was appointed next year, from March 2013. Now that he is due to retire in November this year, we have the collegium recommending another Joseph.

The idea here is not to cast aspersions on the judiciary’s choice of judges for elevation, but how it is possible to suspect motives when convenient.

The larger point that needs making is that the judiciary has been losing its credibility ever since it rejected the National Judicial Appointments Commission (NJAC). Ever since this happened, the judiciary and the government have been involved in a tug-of-war over the memorandum of procedure for elevating judges, and the apex court has only itself to blame for this impasse.

By no stretch of imagination can one read the Constitution as giving the judiciary sole rights to appoint judges to the higher judiciary. At best, Article 124 – which deals with these appointment – can be interpreted to mean that both government and the Chief Justice have some say in how judges are appointed, elevated or transferred.

Instead of merely reading down the objectionable parts of the NJAC, the five-judge bench which examined this law simply rejected it. Thus, an attempt to bring transparency in judicial appointments was junked, and we are now back to the old covert system of influencing the judiciary, whether it is through the promise of post-retirement jobs or some other less savoury methods.

The Supreme Court’s credibility was not helped when four senior judges made public their revolt against the CJI this January, claiming he was fixing benches and that he was only first among equals, and not on a higher pedestal than the rest of the court’s judges.

Once this revolt became public, and with the Congress party foolishly seeking to impeach the CJI, it has been clear that the higher judiciary is a divided house. The latest protest against the order of oath-taking involving K M Joseph will not do the image of the judiciary any good.

If credibility is to be restored, the judiciary has to re-examine its original sin – of junking the NJAC. Maybe, the government should seek a fresh eight- or nine-judge bench to re-examine the NJAC. Though an earlier bid for re-examination has been rejected, this time – perhaps under a new bench constituted by the next CJI Ranjan Gogoi – it should ask for a rethink on the memorandum of procedure and, in the process, re-examine the NJAC verdict itself. There is no case for judges to appoint themselves.