Justice K M Joseph took oath as the judge of the Supreme Court on Tuesday along with Justices Indira Banerjee and Vineet Saran amid a row with the Centre over his seniority being lowered on his elevation.
The elevation of Justice Joseph put an end to a protracted stand-off between the Centre and the judiciary but the former’s decision to lower his seniority created a fresh controversy despite his name being first recommended months before the other two judges.
Justice Joseph, who as the Chief Justice of the Uttarakhand high court had quashed the imposition of President’s Rule by the National Democratic Alliance government in the hill state in 2016 when it was ruled by the Congress, was sworn in after Justices Banerjee and Saran.
While Justice Banerjee was the Chief Justice of Madras high court, Justice Saran was the Chief Justice of the Odisha high court.
Justice Banerjee is the eighth woman judge in the Supreme Court since Independence. The apex court will now for the first time in its history have three sitting women judges -- the others being justices R Banumathi and Indu Malhotra.
Apex court sources said several judges including members of the collegium lodged a protest on Monday with Chief Justice of India Dipak Misra over the seniority issue involving Justice Joseph. However, in the “informal” meeting of the judges on Monday, sources said it was decided that the oath-taking ceremony should first take place before their concerns could be addressed.
Except for Justice Ranjan Gogoi, a member of the apex court collegium who was on leave, others had “informally” deliberated on the Centre’s decision to lower the seniority of Justice K M Joseph, the sources said.
The CJI, who heads the collegium, assured the judges that he would consult Justice Gogoi who is the senior most after him and take up the issue with the Centre, the sources added.
The swearing-in ceremony started at 10.30 am in the CJI’s courtroom with Justice Banerjee the first to take oath followed by Justice Saran and then Justice Joseph.
The oath of office and secrecy was administered by Justice Misra in a packed courtroom in the presence of all the judges, law officers and advocates.
Family members of the three judges were also present.
With the appointment of the three judges, the total strength of the apex court goes up to 25 against the sanctioned strength of 31.
The law ministry on August 2 forwarded Justice Joseph’s file to the President for his assent. The apex court collegium on July 16 had reiterated its January 10 recommendation to elevate him as the judge of the Supreme Court.
The warrants of appointment of the three judges were signed by the President on August 3 and in the Centre’s notification Justice Joseph’s name was mentioned at serial number three.
Apex court judges including Justice J Chelameswar (since retired), Justice Kurian Joseph and M B Lokur had taken exception in the past to the Centre’s stand to first delay Justice K M Joseph’s appointment and then sending it back for reconsideration.
The Centre on Monday maintained that it went purely by the “time tested” principle of high court seniority list by putting at third position the seniority of Justice Joseph.
It had also said that none of the three judges will become chief justice of India as there are other SC judges who have been elevated to the apex court earlier and will retire later.
Convention dictates that the seniority of the judges is determined in accordance with the order of names notified by the government.
On January 10, the collegium recommended the name of Justice Joseph, along with that of senior advocate Indu Malhotra, for elevation to the apex court.
However, the government returned Justice Joseph’s name for reconsideration and went ahead with the appointment of Justice Malhotra.
On May 16, the collegium had in-principle reiterated the decision to recommend Justice Joseph’s name for elevation to the apex court. The recommendation was sent to the government in July and it was accepted.
The collegium’s January 10 resolution, when Justice Joseph’s name was recommended for elevation, said “he stands at Sl. No. 45 in the combined seniority of High Court Judges on all-India basis”.
According to the July 16 resolution of the collegium, Justice Banerjee stood at Sl. No. 4 and Justice Saran stood at Sl. No. 5 in the combined seniority of high court judges on all-India basis.
Justice Joseph became a high court judge on October 14, 2004 and was elevated as a chief justice of high court on July 31, 2014. He will retire on June 16, 2023 as an apex court judge.