Confrontation with Judiciary takes new turn as Government relents on Justice Joseph

The Modi government showed its pettiness and negativityby altering Justice K M Joseph’s seniority making him junior to Justices Indira Banerjee and Vineet Saran while clearing his name for the appointment to the Supreme Court unwillingly.

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 quashing the imposition of President’s rule on Uttarakhand in April 2016 leading to restoration of the Congress-led government of Chief Minister Harish Rawat. In the process, the executive has hit below the belt by denying Justice Joseph to take oath first ahead of other two Justicesso that he cannot head an independent bench in the apex court for quite some time.

Legal fraternity at large and a section of Justices of Supreme Court is understood to be shocked and disturbed over the failure of CJI Dipak Misra to ensure the sanctity of the process of appointment of judges to the top court. They feel that the government is determined to have the last word.

The government is defending 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.

However, Justice Joseph became HC Chief Justice in 2014 while Justice Banerjee in 2017 and Justice Saran in 2016. Well-laid convention of determining the seniority of judges in accordance with the order of names notified by the government lies buried.      .

The President, under the provisions of the Article 124 of the Constitution, issued the warrant of appointment, to Justice Joseph and two other judges, Madras High Court Chief Justice Indira Banerjee and Orissa High Court Chief Justice Vineet Saran to the apex court. Justice Joseph, who turned 60 in June this year, would serve the apex court for four years.

When on 3 August, President Ram Nath Kovind appointed Uttarakhand Chief Justice K M Joseph as the judge of the apex court many presumed there was a change of heart and the BJP government was keen to put to rest an unsavory controversy that had serious questions in the independence and autonomy of the Judiciary.

The Collegium, comprising of Chief Justice Dipak Misra and Justices J S Chelameswar (now retired) Ranjan Gogoi, Madan B Lokur and Kurien Joseph, first recommended Justice Joseph’s name on 10 January this year. On January 12, four of the Collegium judges-Justices Chelameswar, Gogai, Lokur and Jospeh took an unprecedented step of holding a press conference in which they raised the issue of interference in the judiciary bringing into open the ongoing confrontation between the executive and judiciary.

The government returned Justice Joseph’s file to the Collegium on 26 April. Union LawMinister Ravi Shankar Prasad, in a letter to the Chief Justice of India (CJI), cited the Uttarakhand High court Chief Justice’s seniority in the all India list of High Court Judges as one reason for sending back his name. Other reasons that the Law Minister gave for reconsideration were that Joseph’s parent court- Kerala High Court- was already adequately represented in the apex court and lack of representation of other high courts of the country.

It goes to the credit of the collective wisdom of the Supreme Court that it did not counter the government’s effort to undermine the independence of judiciary. The Collegium reiterated in-principle its earlier decision to send Justice Joseph’ name on May 16 but the same was not forwarded to the government then. The recommendation was finally sent to the government on 16 July along with other names.  The apex court did not seek to make it a prestige issue.

Ugly confrontation between the BJP-led National Democratic Alliance (NDA) government and the judiciary began in the initial months of coming to power on May 26, 2014. Hasty passage of the National Judicial Appointments Commission (NJAC) bill in August 2014 by the two houses and subsequent approval of then President Pranab Mukherjee to turn into an act was a desire on the part of the newly elected government to tighten its grip over autonomous institutions that draw their mandates from the Constitution. This was a signal to institutions to either fall in line or be ready to be annihilated and subjugated.

Obviously, the apex court was not ready to surrender its hard earned right though the government and political system of the country was accusing the judiciary of creating an imperium in imperia (an empire within an empire) in the Supreme Court.The Supreme Court had stuck down the NJAC Act declaring it “unconstitutional” inviting wrath from a government whose leader was very high on an intoxicant of huge popular mandate. Thus began an open face-off that has taken many ugly turns shaking people’s faith in both the executive and judiciary.

Many more challenges lie ahead. Term of CJI Misra is ending on October 2. Justice Gogai is in line of succession as he is senior most judge of the apex court, Justice Gogoi, along with three other justices of the Collegium, had addressed a press conference on January 12 that had not gone well with the government and had not been appreciated in the established judicial circles.

There are serious apprehensions that the government may supersede Justice Gogoi.If the Modi government choses to take this path, confrontation shall revive at a time when the country would be heading towards general elections.

round has gone to the judiciary that stood polite but firm in face of provocations. The government, as its actions suggest, is waiting to strike back. The government’s adventurism in undermining the independence and autonomy of the judiciary has backfired. It would been far wiser to draw necessary lessons from the four-year long confrontation that has only sullied the image of the country and that of the government.

In the backdrop of multifarious challenges confronting society and nation, need of the hour is for cooperation and not confrontation. The government seems to be revengeful and is determined to pursue a course that undermines institutions.


Dr. Satish Misra is a Veteran Journalist & Research Associate with Observer Research Foundation.