Judicial Appointments: Is It Proper for the Judges to Go Public?
Again some of the Judges in the apex court seem to be going to the media against the decision of the Rashtrapati on the appointment of new Judges of the Supreme Court. This time they have gone to the streets saying that some of them will be approaching the Chief Justice of India “to express dissatisfaction over the government altering the seniority of Justice KM Joseph, making him junior to Justices Indira Mukherjee and Vineet Saran”. It is also reported in the media that “the Hon'ble Judges of the Supreme Court are upset and agitated” over the way the government seemed to have overlooked the seniority of Justice Joseph. Don't know who are these 'agitated Hon'ble Judges'; if they have anything to say, they should have made it in writing. But here, the way the campaign is being carried out in media is not of course, in tune with the dignity of the Hon'ble apex court. Noticeably, Rashtrapati, and the Government of India must have gone through the process of appointment considering the seniority. Does our 'agitated Judges' think that the Rashtrapati has to ignore the seniority of the Judges?.
Earlier too we have seen one or two Judges writing letters to the Chief Justice of India and other brother Judges, and before ( or by the time) it reaches him/ them, the same appears in the tv channels as breaking news. It's also a fact that some of them have gone to the media publicly, against the CJI or the government in the past. That might have given confidence to the vested groups or individuals to promote news in the name of Judges. This is another attempt on the part of some elements to malign the integrity and independence of the Judiciary in India. I don't know as to whether any of the Judges are involved in this game; hope that none of them is there. Maybe some elements are doing it just to malign the Judges. But in such situations, the Judges of the apex court should have come out with a statement that they have nothing to do with what has been carried or discussed in the media. That has been missing in the past; hope that they will clarify themselves now.
Now come back to the controversy. The Department of Justice of the Government of India has published on its website the list of the Judges serving the various High Courts in India and their seniority. Such data were not available for public scrutiny till this. Now everyone knew who are seniors to whom and who are juniors to whom. There have been complaints in the past of ignoring the seniority, in the appointment of Supreme Court Judges. The collegium recommends the name, and it was taken as the basic document or sole criterion for everything. But Narendra Modi government felt that the seniority cannot be ignored, if there are no other valid reasons for doing so. This was pointed out by the Union Government and Rashtrapati had agreed to it in toto. That has been pointed out by the government while returning or ignoring some of the earlier recommendations of the collegium. That was brought to the notice of the Chief Justice of India then and there too. Here the government's stand is very clear; the collegium is the authority to recommend the names. But the government has to go through the intelligence report etc. concerning the individuals before making the final decision concerning appointments. Apart from that the government also has to go through the seniority list of the Judges. If the collegium feels that the seniority of some Judges is to be over looked, it can be done; but they have the responsibility to point out the valid reasons for the same, which should satisfy the Rashtrapati.
There are at least eleven Judges in the various High Courts, now serving, who are seniors to the three who are now appointed to the apex court. None of those eleven could become Chief Justice of the High Court too. The number of the same in various High Courts is as follows: Madras -1; Punjab-2; Calcutta-2; Allahabad-1; Mumbai-2; Karnataka-1; Madhya Pradesh-2. There may be having some valid reasons for ignoring these eleven learned Judges.
Here we have to see as what the government or the Rashtrapati has done. Justice KM Joseph is the third in the seniority of the Judges now appointed in the Supreme Court. Justice Joseph became a permanent Judge of the Kerala High Court only on October 14, 2004. But the other two had been there in the High Courts much before him. Justice Indira Banerji was made the permanent Judge of the Calcutta High Court on February 5, 2002; the other Judge, Justice Vineet Saran was also made permanent Judge of the Allahabad High Court in 2002; i.e. on February 14, 2002. So what does it show? Here I do believe that the Union Government and Rashtrapati have shown justice in these appointments by not ignoring the right of the seniors. I don't think that any of the Judges in the apex court will think that the person who became Judge of a High Court two years later than the other two are to be given seniority. That is the substantial reason for the thinking that the news or views that have been discussed have nothing to do with the present Supreme Court Judges.
(Writer is a senior journalist and political analyst).