Nothing wrong in Centre’s decision to send back Justice KM Joseph elevation matter for reconsideration by collegium

I am of the considered opinion that the Central Government decision of sending back the name of Justice K.M. Joseph for elevation as Supreme Court judge for reconsideration by the collegium, is a right decision. There are 41+3 = 44 reasons for this.

Justice K.M. Joseph was initially appointed as a judge of the High Court of Kerala on 14.10.2004. At present, there are 41 High Court judges who are senior to him. All of them have been ignored or superseded for ensuring that Justice KM Joseph be elevated. I can understand if one or two judges are superseded, if they are not so good comparatively. But, superseding as many as 41 High Court judges (including Chief Justices of many high courts) is really a serious matter. It reflects poorly on the collegium. Just yesterday, I wrote in an answer as to how collegium decisions are non-transparent and generally unreasoned.

Here is a list of 16 existing Chief Justices or Acting Chief Justices of various High Courts (see here for source) who have been superseded by the Supreme Court collegium while recommending the name of Justice KM Joseph for appointment as Supreme Court judge  (date in the bracket is the date of first appointment as HC judge):

1. Allahabad HC Chief Justice D.B.Bhosale (22/01/2001).
2. Bombay HC Acting Chief Justice Smt.V.K.Tahilramani (26/06/2001).
3. Calcutta HC Acting Chief Justice Jyotirmay Bhattacharya (03/12/2003).
4. Delhi HC Acting Chief Justice Ms. Gita Mittal (16/07/2004).
5. Gauhati HC Chief Justice Ajit Singh (01/04/2002).
6. Gujarat HC Chief Justice R. Subhash Reddy (02/12/2002).
7. Jharkhand HC Acting Chief Justice Dhirubhai N. Patel (07/03/2004).
8. Karnataka HC Chief Justice Dinesh Maheshwari (02/09/2004).
9. Madhya Pradesh HC Chief Justice Hemant Gupta (02/07/2002).
10. Madras HC Chief Justice Kumari Indira Banerjee (05/02/2002).
11. Orissa HC Chief Justice Vineet Saran (14/02/2002).
12. Patna HC Chief Justice Rajendra Menon (01/04/2002).
13. Punjab & Haryana HC Chief Justice S.J. Vazifdar (22/01/2001).
14. Rajasthan HC Chief Justice Pradeep Nandrajog (20/12/2002).
15. Tripura HC Chief Justice Ajay Rastogi (02/09/2004).
16. Chhattisgarh HC Chief Justice Thottathil B. Radhakrishnan (14/10/2004) [Note: He was appointed as HC judge on the same date as Justice K.M. Joseph, so it is not a case of supersession but he should have been considered equally.]

In addition, there are another 25 judges of various High Courts who were appointed as Judges of the High Court BEFORE Justice K.M. Joseph, who are yet to elevated even as Chief Justice of any High Court, whereas Justice Joseph is now being elevated as Supreme Court judge.

Just have a look at these names. Do you think that all the above Hon’ble Judges are not doing good work? Do they need to be superseded en masse to ensure that Justice KM Joseph is given out of turn elevation to the Supreme Court?

How can you condemn so many senior judges, who are senior to Justice KM Joseph? What is their fault? If they are not suitable, then why do you continue to have them as Chief Justice or a Judge of a High Court? Or, how did the collegium select them in the first instance?

Let me tell you frankly, I have personally appeared before some of these 41 judges. I don’t think they are less meritorious than others.

As I mentioned above, superseding one or two judges can be understood, because one can appreciate that one or two judges may not be that efficient, but condemning 41 senior judges in one go and superseding them just to favour one particular judge is really a cause of concern and shows how the collegium working is not perfect. This is irrespective of whether such particular judge is an outstanding judge, though it is besides the issue that there is hardly any objective way of judging the comparative merits of judges. It is usually subjective depending on what the collegium decides with consensus, on the basis of limited feedback they get (which may not always be objective feedback) and their personal prejudices.

I understand that many legal experts and senior lawyers (even many retired judges) are supporting Justice KM Joseph. There are various reasons for that, including political. Many of them are in fact supporting him in order to maintain the sanctity of the decision of the collegium. Or, between the Government and the SC collegium, they want the collegium decision to prevail. Okay, it may have some appeal. I may also generally agree more with the collegium than with the Government. But, should one support the SC collegium even if it takes a decision which appears to be arbitrary or unreasonable to a large number of senior judges? Superseding 41 senior judges, many of whom are sitting Chief Justices of High Courts is something which is completely unusual for the collegium to decide. I cannot agree with the assertion that all these 41 judges have no merit or that Justice KM Joseph is more meritorious than them. What is the criterion of judging the comparative merit? It has not been disclosed. In any case, you’ll notice that in next few months, many of these 41 judges would also be ultimately elevated, which would clearly show that they had merit. Then, why supersede them right now?

I am not at all suggesting that Justice KM Joseph is not a good judge. He may be an outstanding judge and I genuinely believe that he is definitely an outstanding judge. By all means, he should be elevated as a Supreme Court judge. But, it should be done in his turn. It should be done by respecting the seniority of judges while giving reasonable weightage to merit (of course, one or two odd judges who do not have merit, even though senior, may be superseded, but not 41 judges in one go). By no stretch of imagination can it be said that all these 41 senior judges have no merit even though they were also selected by the Supreme Court collegium and some of them were further elevated as Chief Justices of High Courts.

Let me give another example. Right now there are 24 judges in the Supreme Court. The present Chief Justice of India, Justice Dipak Misra would be retiring on 02.10.2018 and the next senior most judge at that time would be Justice Ranjan Gogoi. So, next Chief Justice of India would be Justice Ranjan Gogoi in all likelihood. Now, suppose, at that time, Justice S. Abdul Nazeer (who is at seniority number of 22) or Justice Navin Sinha (who is at seniority of 23) is appointed as next Chief Justice of India, superseding Justice Ranjan Gogoi and about 20 other judges, how would you feel? How will the so-called liberal media feel? Will they call it the murder of democracy and the murder of the institution of judiciary?

Then why should you not have the same feeling when a particular judge is being elevated as Supreme Court judge by superseding as many as 41 senior judges? Why there is no hue and cry now? If this is not double standard and then what it is?

Many of the esteemed readers may be in Government service or some other service. How will you feel if you are No. 1 in the seniority list but someone at No. 42 in the Seniority List is promoted and not you? Almost all of the esteemed readers would have appeared in various examinations. How would you feel if someone at No. 42 is declared the topper even though you may have got the highest marks?

So, look at the frustration of those 41 judges who are senior and yet they have been superseded. Remember, these 41 judges are also from the same Indian judiciary, they are not from Mars or Venus. They also expect equal justice from the collegium. And, unlike you and me, they cannot even challenge the decision of the collegium of superseding them. So, if denying elevation (that too – out of turn) to Justice KM Joseph can amount to compromising the judiciary, then would denying elevation (which would be more equitable – they being senior) to as many as 41 more senior judges the same opportunity not amount to a similar compromise? I again and again re-emphasise – one or two judges may be bad or inefficient, but not all 41 judges. If all these 41 senior judges are supposed to bad judges, then that would rather reflect more poorly on the collegium itself.

Before I end, here are some other reasons given by the Central Government for not accepting the collegium recommendation in respect of Justice KM Joseph:

• Ten High Courts are currently not represented in the Supreme Court. [It is generally a practice that as far as possible, most high courts should be represented in the Supreme Court.]
• On the other hand, if Justice Joseph is appointed, there would be two judges in the Supreme Court whose parent high courts would be the Kerala High Court. This is to be considered keeping in mind that Kerala High Court is comparatively a smaller High Court.
• There hasn’t been any SC/ST representation in the Supreme Court for a long time.

My humble submission is that I have the greatest respect for the talent of Justice KM Joseph. He may be an outstanding judge. He should definitely be elevated to the Supreme Court. But, it should not be done at the cost of superseding and condemning 41 other judges who are senior to him. He should become SC judge in his own turn, by way of his seniority.

In fact, it is also puzzling as to how Justice KM Joseph was elevated as Chief Justice of a High Court judge in 2014, after less than 10 years of judgeship, when there are judges with 17-18 years’ seniority yet to be appointed as Chief Justice of any High Court even today.

You may also like to see my answer on a similar issue.