The Centre has admitted that seniority is a criterion for promotion of high court judges to the Supreme Court, after having maintained that it was not a factor for consideration in their elevation.
The contradiction came to light in the law ministry’s reply to Right to Information (RTI) queries on why former Delhi High Court Chief Justice AP Shah was overlooked for elevation to the top court despite being “one of the finest judges”.
The Department of Justice, in response to RTI queries by Delhi-based activist Subhash Chandra Agrawal, informed him on February 21: “Seniority is not a criteria prescribed for elevation of judges to the Supreme Court in terms of Article 124 (3) of the Constitution of India and Memorandum of Procedure for appointment of judges to the Supreme Court.”
Asked whether Justice Shah was denied promotion (superseded) ignoring seniority, the department replied, “The question of supersession does not arise. Nor was any complaint received against Justice Shah. Due process was followed and since the process is initiated by the Chief Justice of India, further queries may be referred to the Supreme Court.”
However, in response to fresh queries, the department admitted seniority was a criteria. “As per the Memorandum of Procedure, the CJI initiates proposal and forwards the recommendation to the government to fill up the vacancies of judges arising in the Supreme Court and of chief justices in the states. Consideration is given to the merit, ability, suitability and seniority of the recommendees,” the April 21 reply said.
It added that the rules reinforced by the advisory opinion of the top court in 1998 “make it clear the seniormost judge would be considered for the post of the Chief Justice of India”.
The procedure for appointment and promotion of judges based on recommendations of a panel of top judges (collegium) has been criticised for its secretive style of functioning. It does not give any reasons for selection or rejection of judges.
Justice Shah retired in February, and jurists such as Fali S. Nariman and Ram Jethmalani described him “as a good judge who could not make it to the Supreme Court”.