Justice KM Joseph. Photo: WikiCommons
Justice KM Joseph. Photo: WikiCommons

Some Supreme Court judges in India asked to meet Chief Justice Dipak Misra on Monday to express their anguish over the altering of Justice KM Joseph’s seniority.

The change makes him junior to two others who will be sworn in as Supreme Court judges.

Three judges – Indira Banerjee, Vineet Saran and KM Joseph – are scheduled to be sworn in on Tuesday as Supreme Court judges, with Joseph to be sworn in third “in precedence on the Bench of the Supreme Court.”

According to the Indian Express, some Supreme Court judges are “disturbed” and “shocked” and feel they have been let down by the Chief Justice of India for “not standing up to safeguard” the sanctity of the process of appointing judges to the apex court.

The move is seen as a signal from the government that it will have the last word on the matter.

In April this year, the ruling Bharatiya Janata Party did not approve Joseph’s appointment, three months after the collegium, which appoints judges to the nation’s constitutional courts, had recommended him. Justice Joseph was then senior to Justice Indu Malhotra, who was a direct appointment from the Bar.

On July 16, Justice Joseph’s name was “separately reiterated” by the collegium before recommending justices Banerjee and Saran, who were suggested in a different batch on the same day.

On August 3, President Ram Nath Kovind issued warrants for the appointment of the three judges after which the Supreme Court issued a circular announcing the date and time of the swearing in. According to the warrants, Justice Joseph’s name was mentioned after the other two justices, probably based on the seniority in the All India High Court Judges’ Seniority List.

With 65 as the retirement age for Supreme Court judges, Justice Joseph’s tenure will be until June 16, 2023, Justice Banerjee will serve until September 9, 2022, and Justice Saran until May 10, 2022.

Although Justice Joseph is not in line to be the Chief Justice, if he has been put at number one on the list, he would be in a position to head an independent bench in the Supreme Court earlier than he would at number three. He is now the longest serving Supreme Court judge of any high court in India.

“Obviously when Justice Joseph’s name is considered and reiterated separately, the collegium intended Justice Joseph to be ranked senior to the other two [justices Banerjee and Saran]. But it appears that it has been altered at the executive stage. The collegium was very clear in its mind that Justice Joseph must rank senior … This is very strange in a way,” former Chief Justice of India R.M. Lodha told The Hindu.

He added that nothing will happen unless the matter is taken up immediately by the Chief Justice of India.

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