The controversy surrounding swearing in of judges and the consequent impact on their seniority has surfaced yet again..The Union Ministry of Law and Justice has sent a communication to the Governor of Kerala specifying the order in which two lawyers cleared for appointment as judges to Kerala High Court should take oath.The two appointees are Mohammed Nias CP and Viju Abraham.The communication directs that oath of office be administered first to Abraham and then to Nias.This is despite the fact Nias is senior in terms of age and date of enrolment at the Bar..While Nias enrolled as lawyer in January 1995, Abraham enrolled at the Bar in January 1996. Nias was also the first to be recommended by the Supreme Court Collegium for judgeship.While his name was cleared by the Collegium in March 2019, the name of Abraham was recommended in May 2019..The names, it is assumed, might have been sent back to the Collegium by the Central government because the Collegium after two years, published another statement on its website stating that it is reiterating the names of Nias and Abraham.The appointment notification issued on Wednesday came after the reiteration.It is not clear who takes the decision to regarding the order in which judges are sworn in.According to certain High Court lawyers, when two High Court judges are sworn in on the same day, it is the date on which they are enrolled at the Bar which is taken into consideration to determine the order of swearing in and consequently the seniority.However, even if other factors like date of Collegium recommendation and age are considered, Nias is senior to Abraham..The only catch, however, is that in the March 2021 resolution of the Supreme Court reiterating the names of the two appointees, the name of Abraham appears above Nias.A similar controversy had surfaced three years back when Justice KM Joseph was sworn in as Supreme Court judge behind Justices Indira Banerjee and Vineet Saran.This was despite the fact that Justice Joseph’s name was recommended first by the Collegium on January 10, 2018. The Centre had sat it on it for a considerable period of time before sending it back to the Collegium. The Collegium then deferred its decision on at least three occasions before it reiterated its decision on July 16, 2018. The same day, it recommended the appointment of Justices Banerjee and Saran to Supreme Court but by way of a separate resolution.The Central government acted on these three names and issued notification of their appointment on the same date, August 3.Subsequently, it clubbed the three for the purpose of swearing-in while relegating Justice Joseph to the bottom of the list..It is unclear as to who or what decides the seniority of judges. While convention and norms are mostly the basis of the practice, lack of clear guidelines meant that such controversies are becoming more frequent.The need of the hour is to finalise the Memorandum of Procedure laying down the nitty-gritty with regard to judicial appointments and determination of seniority.
The controversy surrounding swearing in of judges and the consequent impact on their seniority has surfaced yet again..The Union Ministry of Law and Justice has sent a communication to the Governor of Kerala specifying the order in which two lawyers cleared for appointment as judges to Kerala High Court should take oath.The two appointees are Mohammed Nias CP and Viju Abraham.The communication directs that oath of office be administered first to Abraham and then to Nias.This is despite the fact Nias is senior in terms of age and date of enrolment at the Bar..While Nias enrolled as lawyer in January 1995, Abraham enrolled at the Bar in January 1996. Nias was also the first to be recommended by the Supreme Court Collegium for judgeship.While his name was cleared by the Collegium in March 2019, the name of Abraham was recommended in May 2019..The names, it is assumed, might have been sent back to the Collegium by the Central government because the Collegium after two years, published another statement on its website stating that it is reiterating the names of Nias and Abraham.The appointment notification issued on Wednesday came after the reiteration.It is not clear who takes the decision to regarding the order in which judges are sworn in.According to certain High Court lawyers, when two High Court judges are sworn in on the same day, it is the date on which they are enrolled at the Bar which is taken into consideration to determine the order of swearing in and consequently the seniority.However, even if other factors like date of Collegium recommendation and age are considered, Nias is senior to Abraham..The only catch, however, is that in the March 2021 resolution of the Supreme Court reiterating the names of the two appointees, the name of Abraham appears above Nias.A similar controversy had surfaced three years back when Justice KM Joseph was sworn in as Supreme Court judge behind Justices Indira Banerjee and Vineet Saran.This was despite the fact that Justice Joseph’s name was recommended first by the Collegium on January 10, 2018. The Centre had sat it on it for a considerable period of time before sending it back to the Collegium. The Collegium then deferred its decision on at least three occasions before it reiterated its decision on July 16, 2018. The same day, it recommended the appointment of Justices Banerjee and Saran to Supreme Court but by way of a separate resolution.The Central government acted on these three names and issued notification of their appointment on the same date, August 3.Subsequently, it clubbed the three for the purpose of swearing-in while relegating Justice Joseph to the bottom of the list..It is unclear as to who or what decides the seniority of judges. While convention and norms are mostly the basis of the practice, lack of clear guidelines meant that such controversies are becoming more frequent.The need of the hour is to finalise the Memorandum of Procedure laying down the nitty-gritty with regard to judicial appointments and determination of seniority.
