Recapping Justice KM Joseph's appointment fiasco

After much furore, Justice KM Joseph was finally appointed as a judge of the Supreme Court.

If you've missed the previous episodes in series that is his appointment, here's a quick recap. In India, the appointment and transfer of judges is done by a collegium which consists of the Chief Justice of India and the four seniormost judges of the Supreme Court.

The collegium had recommended the name of Justice Joseph, then the chief justice of the Uttarakhand High Court, for elevation to the Supreme Court on January 10 this year. While the Centre sent back his file requesting the collegium reconsider the appointment, the collegium stood its ground and sent his name back to the government.

The back and forth with the law ministry had continued for a while. The ministry had justified sending Justice Joseph's name back to the collegium for reconsideration saying, "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."

Finally, on August 3, the law ministry accepted Justice Joseph's elevation to the Supreme Court.

But here comes the twist — the appointment notification placed Justice Joseph third on the list after Justices Indira Banerjee and Vineet Saran who were appointed to the Supreme Court along with him (Joseph). Even though the Centre had previously raised objections about his seniority, it was clear from the collegium's reiteration that Justice Joseph was their recommendation.

The latest fire seems to have been started by the fact that collegium members are displeased with the Centre's notification which put Justice Joseph's name last on the list. Justice Banerjee and Justice Saran's names had been placed before Justice Joseph's, which make him junior to them.

The collegium believes that since Justice Joseph's name was sent first to the government, his name should have been placed before that of Justice Banerjee and Justice Saran. 

But according to convention (not laws or the Supreme Court rule book), the date of appointment of a judge determines his or her seniority (both in the high courts and the Supreme Court) and not their age.

While Justice Banerjee was appointed a high court judge on February 5, 2002, Justice Saran became a high court judge on February 14, 2002. Justice Joseph on the other hand was appointed a high court judge on October 14, 2004 which — according to convention — makes him junior to the other judges appointed along with him.

The other collegium members met Chief Justice Dipak Misra to express their displeasure at the government's move. CJI Misra has assured them that he will take up the matter with Law Minister Ravi Shankar Prasad and discuss with Attorney General KK Venugopal.

Justice Banerjee, Justice Saran, and Justice Joseph were sworn into the Supreme Court on Tuesday. There has been no change to their seniority.