Row over Justice KM Joseph should lead to rethink on role of 'seniority' in Supreme Court appointments

The Central government is considering asking the Collegium to reconsider its recommendation that Justice KM Joseph of the Uttarakhand High Court be elevated to the Supreme Court, a report in The Indian Express  on Thursday quoted sources as saying.

While as of writing this article, it is not confirmed whether the judge’s name has been sent for reconsideration, it does raise a question as to what happens in such a situation. Under the current procedure established after the second judges' case, the Collegium, which consists of the Chief Justice of India and the four senior-most judges of the Supreme Court, sends its recommendations to the Central government. The government may then pass on the recommendation to the President directly, or it may send the name back for reconsideration by the Collegium. However, if the Collegium sends it back once more, the President is bound to issue the warrant of appointment.

The Central government however, does have an unwritten power, namely the power of the pocket veto. The Central government has no time limit within which it is required to either return a recommendation or forward it to the office of the President. Therefore, instead of sending a file back, it may choose to just sit on it till the proposed candidate reaches the age for retirement. As per the report by The Indian Express on Thursday, in the event that the Central government chooses to do this in the case of Justice Joseph, the Collegium is of the view that they will not propose any further names so long as it is in place. This will effectively stall the process of judicial appointments.

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While this may appear to be quite a chaotic solution with one branch of the government effectively holding the other branch hostage, this is exactly how the separation of powers is supposed to work. The principle of the separation of powers results in situations of deadlock such as this, where two branches of the government will find themselves in a situation where they cannot agree on something. The system is designed to create deadlocks to cause the branches to work together to resolve the deadlock, and in this process force the branches to build a consensus on the point of the deadlock.

The government’s argument, as reported by The Indian Express, is that Justice Joseph’s elevation would mean that there would be a break in the concept of seniority and regional representation. However, the question of finally deciding on seniority and regional representation ought to take a backseat to how the Supreme Court Collegium views the merit and skill of a particular judge. In fact, in the recent past, there have been a lot of younger judges appointed to the court, including appointees from the Bar. In this round of recommendations as well, there is a Bar appointee, Indu Malhotra, who has also been recommended for elevation.

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The concept of seniority and regional representation in how the Supreme Court is constituted may require a re-look. The elevation of Justice Joseph may be a good case to reconsider these points. This is because it may not make sense to have Supreme Court judges who have very short tenures before retirement. It may be good to have younger judges who will be able to spend a longer time at the Supreme Court. This will help the court to fulfill its role in settling substantial questions of law and will also help it to clear the backlog of cases, as the judges will be on the bench longer and therefore will be able to hear more cases.