New Delhi: On Monday, a group of Supreme Court judges decided to reach out to Chief Justice of India Dipak Misra on the question of ‘seniority’ Justice KM Joseph will enjoy in the Supreme Court. The move comes after the government cleared the appointments on Saturday and placed Justice Joseph’s name third in the notification, making him junior to the other two judges. This is expected to hamper his chances of being elevated to the post of CJI as well as head a Supreme Court bench.
According to precedent, “senior most HC judge” is administered the oath first. Justice Indira Banerjee was appointed as the HC judge in February, 2002, Justice Vineet Saran was appointed on February 14, 2002 and Justice KM Joseph was appointed as a judge on October 10, 2004.
However, if former judges, who have taken oath and have been members of the Supreme Court, are to be believed then “though there is no written convention”, “precedents have always varied”.
News18 reached out to three former Supreme Court judges who recollected their own oath taking ceremonies to weigh in whether the government is correct about asking Justice Joseph to take the oath last.
'Government is taking revenge'
Justice PB Sawant, Supreme Court Judge, 1989: Sawant started practising as an advocate initially at the Bombay High Court and later at Supreme Court of India. In 1973 he was appointed Judge of the Bombay High Court; among his notable acts was an inquiry on the Air-India aircraft crash in June, 1982. He was appointed justice in the Supreme Court in 1989. Since his retirement in 1995, he has been active in public affairs.
“The oath taking is according to the names mentioned in the warrant that comes from the President. The government of the day in this case is trying to take revenge. If KM Joseph is the senior most as Chief Justice then he should be given preference. The tradition is those who are picked up from the Bar get precedence over those who are picked up from the service. But among those who are in service, seniority in accordance to Chief justice must be given seniority. When I took oath, seven judges were there in total. Justice V Ramaswamy, the then Chief Justice of the Chandigarh High Court, was administered oath first. There was no discrimination back then. Even if there is no written convention, this is as good as a written convention.”
'Senior most HC Judge has to be administered oath first'
Justice Gyan Sudha Mishra, Supreme Court Judge, 2010: Justice Mishra has passed several landmark and notable judgments in the Supreme Court of India including judgments on conflict of interest in the Srinivasan-BCCI matter, landmark euthanasia judgment - Aruna Shanbaug matter and most recently the Delhi Uphaar fire tragedy dissenting judgment holding the management liable for colossal loss of human lives and directing them to pay heavy compensation to be used for social causes like building trauma center.
“There is no written convention in this matter. But to recollect when Justice Sabyasachi Mukherjee and Justice Ranganath Mishra were administered oath, then Justice Mishra was the senior most HC Judge but Justice Mukherjee was administered oath first and was made a senior to him. Justice Mishra had written a letter to the President, but still no steps were taken. Even though I am a member of the apex court, there is no written convention to adhere to. But what I have usually seen is that the senior most HC judge is given the oath first. The seniority of the Supreme Court has to be determined as the seniority as the High Court judge and not the High Court Chief justice. If Justice Indira Banerjee is the senior most HC judge, she needs to be administered oath first. Whenever this convention has been breached, it has not been taken in good light.”
'Government is Correct. I was sworn in first, as I was the senior most judge'
Justice Ashok Kumar Ganguly, Supreme Court Judge, December 2008: Justice Ashok Kumar Ganguly is the former Chairman of the West Bengal Human Rights Commission and a former Judge of the Supreme Court of India who delivered judgment in some high-profile cases like the 2G spectrum case.
"The person who becomes the HC judge first, they become the senior. Chief justice is a different thing. There are some persons who have become Supreme Court judges without becoming a Chief Justice, Justice Subhash Chandra Sen, Justice P Sathasivam and others were never High court chief justices. It has nothing to do with seniority and seniority will be counted from the day you have been designated as a judge. In my own personal example, I was sworn in along with Justice RM Lodha and Justice HL Dattu. I was sworn in first, as I was the senior most judge, though there might have a High Court chief justice among the other two. There is nothing wrong with the government stand and this is the precedent.
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