Dinesh Kamath's Editorial 'Merit is more important than seniority' that was published in Newsband

Merit is more important than seniority

Union government is now for Justice K.M. Joseph’s elevation to the Supreme Court. The five-member collegium is to reiterate its recommendation to appoint the Chief Justice of the Uttarakhand High Court as a judge of the Supreme Court. There was an objection to Justice Joseph’s appointment on the ground that he was not senior enough. Justice Joseph’s name was sent along with that of senior advocate Indu Malhotra in January, but the Centre took three months to act on it. It cleared her name alone, while seeking reconsideration of Justice Joseph’s name. Is seniority, and not merit, the sole consideration for appointment of the Chief Justice

The onus is more on the government of the day to ensure it is not seen as blocking the appointment of anyone the judges themselves have found fit and deserving. The very fact that the government delayed clearance, for three months, the list of the collegium recommended appointment of S C judges, is in itself questionable as to its seriousness about the very appointments, given the fact that there is a high short fall of judges in the S C. The clearance of the S C's senior advocate Indu Malhotra's name singularly and returning the name of the well known Uttarakhand's upright sitting justice Joseph, does raise the suspicion that this act of the government has its own political links to the verdict delivered by the Justice Joseph on the imposition of the Presidential Rule by the BJP government in Uttarakhand.

In order to come clean, Delhi should clear up the entire list of recommendations that is being sent now to them by the Collegium. Once the Collegium, a body of learned judges of SC, recommends to the President of India any name of a judge to be elevated to the SC the President should give his assent as always been the case. Only in caae of Justice Joseph the President witheld the name of the judge Joseph. Recommendations of the Collegium should be respected by the President of India.

It is strange that 'only merit counts and not seniority' for elevation of a HC judge to SC, but 'it is strictly seniority' in the SC. When what prevails ultimately is the collegium's recommendation why is it so touchy about the executive's request for reconsideration? The collegium's reaction appears to be one due to hurt ego.

The decision of the Collegium of the Supreme Court has now opened a pandora's box. The Government can now sit on for another three months and return the entire list quoting some concern about another judge. And this could drag on.

Judiciary, cannot be changed or modified to suit the whims and fancies of even the Judges/ Collegium. While the current Judges selection and appointment cannot be said to be wholly "honest" and Transparent (within the rules of Democracy), The correct procedure would be to allow the existing methods/procedures to function, unhindered - and try to find out ways and means to make the "system" more transparent - through intellectual and apolitical discussions and expert considerations. Politicians and so-called Public figures (many could be of doubtful characters, even though socially and financially sound) should not enter into this "body" - at any cost

If justice delayed is justice denied then justice delayed to the judiciary could have equal or greater adverse consequences. Prompt and expeditious action on matters judicial or pertaining to justice and rule of law may augur well for the judiciary to hold not only the scales of justice even but also holding the judicial stature and it head high. Judiciary to play its justiciable role must be free enough to concentrate on its assigned role especially in the context of backlog and deficiency in numbers.

On the other side, why is opposition, especially Congress, so interested in this process right now? And what about the judges conducting press conference being seen as the prime force behind reiterating Justice Joseph's name. The opposition focuses only on centre's action all the while admitting that centre is well within its lawful right to return a name for reconsideration.

If all the pillars of democracy have to perform, each must get its rightful say in matters of national importance. Just because executive is headed by a person whom you may dislike, doesn't mean that the role of government to perform checks is forfeited.