By Asking Centre To Give Seniority To Reiterated Name Over New Proposals, SC Collegium Sets A New Precedent

The recent resolutions published by the Supreme Court Collegium have been making headlines as these are unprecedented instances of the Collegium publicising both the objections raised by the Central Government and its responses to them. The Collegium showed laudable temerity in calling out certain frivolous and unacceptable grounds of objection- such as sexual orientation of a candidate, the views expressed by one candidate in social media and the act of another candidate sharing an article criticising the Prime Minister.

Though the display of boldness by the Court- which came in the backdrop of the continuous verbal attacks being made by several executive functionaries over past few weeks- is being widely hailed and celebrated, there is one significant aspect in the collegium resolution which has not garnered sufficient public attention.

While reiterating the name of Advocate John Sathyan for elevation as Madras High Court judge, the collegium added a very crucial statement, which is also unprecedented. The collegium proposed that he should be given seniority over the new names which were recommended for elevation as Madras High Court judges.

It was on February 16, 2022 that the Supreme Court collegium proposed the name of Sathyan for the first time, along with five other names. Out of these six, the Centre approved the names of 4 persons in two batches (two in March and other two in June 2022), while withholding approval for John Sathyan and Abdul Ghani Abdul Hameed.

On January 17, 2023, the Supreme Court Collegium comprising CJI DY Chandrachud, Justice SK Kaul and KM Joseph reconsidered the case of Sathyan and rejected the two grounds of objection raised by Centre- that he shared an article critical of PM and he criticised NEET in the wake of the suicide of a student.

On the same day (January 17), the Collegium also made fresh proposals for the elevation of five other advocates. In this background, the Collegium added a statement in the resolution that Sathyan should be given priority over the fresh proposals.

"The Collegium further recommends that he be given precedence in the matter of appointment as Judge over certain names separately recommended today by this Collegium for appointment as Judges of the Madras High Court". 

This is an appreciable move by the Collegium as it ensures that the person, whose name was arbitrarily withheld by the Centre, does not lose out on seniority. In this connection, it is worthwhile to recall the fiasco which happened with respect to the seniority of Justice KM Joseph.

In July 2018, the Supreme Court collegium reiterated its earlier proposal to elevate Justice KM Joseph. On the same day, the collegium also made two fresh proposals for elevation of Justices Indira Banerjee and Vineet Saran. However, while issuing the orders of appointment, the Central Government placed Justice KM Joseph below Justices Banerjee and Saran, costing him his seniority by two positions.

Perhaps learning from such a debacle, the Collegium has now made it clear that the reiterated name should be given priority over fresh proposals. Ideally, when a name has been withheld arbitrarily, that person should be given deemed seniority from the date of original proposal. In the recent hearings in the contempt petition filed by the Advocates Association of Bengaluru, the Court had expressed concerns about Centre splitting up collegium resolutions as it will result in the disruption of seniority.

It is also noteworthy that the Collegium said that the other eiterations (the names of Saurabh Kirpal, Somasekaran Sundaresan, Amitesh Banerjee and Sakya Sen) should be processed by the Centre "expeditiously".