“It is better to risk saving a guilty man than to condemn an innocent one.”
Ending a protracted stand-off with the judiciary, the government on Friday appointed Uttarakhand High Court Chief Justice K M Joseph as a Judge of the Supreme Court of India and he along with Justices Indira Banerjee and Vineet Saran were sworn on Tuesday. The swearing in ceremony was shadowed by a controversy over the order in which the judges were sworn in. After the almost seven-month-long impasse the government placed Justice Joseph last in seniority, after Justices Banerjee and Saran, although the SC Collegium had recommended his name ahead of the other two. A group of judges soon after the ceremony met the Chief Justice Deepak Mishra and raised their objections to Justice Joseph being listed at number 3 in the government order on the oath ceremony despite his name being the first to be recommended by the Supreme Court collegium or the panel of top judges who decide on appointments. The judges accused the government of interference and trying to alter the seniority of Justice Joseph, whose 2016 decision to cancel President’s Rule in Uttarakhand had helped restore the Congress government in the state. The Centre’s objections to Justice Joseph’s candidature were unconvincing from the very beginning. As per the unanimous Collegium resolution of January 10, Justice Joseph was found to be “more deserving and suitable in all respects than other Chief Justices and senior Puisne Judges of High Courts for being appointed as Judges of the Supreme Court of India”. It is clear that the established procedure for determining seniority of judges has been violated by the government, to deliberately slight the judiciary, a position which should not be acceptable to the CJI.
The government has defended its decision saying that it has acted following the seniority list of High court judges. Justice Banerjee was appointed as a HC judge on 5 February 2002 while Justice Saran came to the High Court on 14 February 2014. Justice Joseph’s appointment took place on 14 October 2004. Whatever the government say on seniority (not to forget Justice Joseph became chief justice of HC before the other two), there is no denying that the Modi government showed its pettiness and negativity by altering Justice Joseph’s seniority. Unable to stop Justice Joseph’s elevation to the apex court, the BJP government’s ego was hurt and therefore it has tried to settle scores with him for the April 2016 incident. In the process, the executive has hit below the belt by denying Justice Joseph to take oath first ahead of other two Justices so that he cannot head an independent bench in the apex court for quite some time.
The ball — the opportunity to defend his institution — was in CJI Misra’s court. In the recent past there was a hue and cry regarding the executive’s bid to control or dominate the judiciary. In January, four senior-most SC judges held an unprecedented press conference to say that all is not well with the court. It is shocking and disturbing development failure of CJI Dipak Misra to ensure the sanctity of the process of appointment of judges to the top court. The government had the last laugh, but the possibility of other flashpoints cannot be ruled out, which might shake people’s faith in both executive and judiciary.