Controversy continues over Justice Khanna’s elevation

1998 opinion by the SC may shed light on the issues raised

January 21, 2019 09:12 pm | Updated 09:12 pm IST - NEW DELHI

A view of the Supreme Court of India, in New Delhi.

A view of the Supreme Court of India, in New Delhi.

In the backdrop of the controversy over the appointment of Justice Sanjiv Khanna, a 1998 opinion by the Supreme Court may shed light on the questions raised by the episode.

The objections against are not merely over seniority, but extends to questions about the Collegium dropping the names of two judges considered earlier and the reasons given for changing its decision.

As Justice Khanna shared the Bench with the Chief Justice of India Ranjan Gogoi on Monday, a section of legal experts condemned the controversy as a “selective” outcry.

They cited the recent example of the Collegium recommending Justice K.M. Joseph for appointment to the Supreme Court over many other judges senior to him. Why cannot the same happen to Justice Khanna, who was ranked 33 in the all-India high court judges’ seniority list, they asked.

A nine-judge Bench in the ‘Special Reference Case’ of 1998 had ruled that “merit is the pre-dominant consideration for the purposes of appointment to the Supreme Court”.

“Where there is outstanding merit, the possessor thereof deserves to be appointed regardless of the fact that he may not stand high in the all-India seniority list or in his own High Court,” the court had held in its opinion on the 1998 Presidential Reference on the intricacies of the Collegium system.

However, objections voiced by the likes of former Chief Justices of India R.M. Lodha and K.G. Balakrishnan are not confined to supersession alone.

The furore, in fact, extends to why the Collegium had dropped its December 12, 2018 proposal to recommend Delhi High Court Chief Justice Rajendra Menon and Rajasthan High Court Chief Justice Pradeep Nandrajog and, within days, chose Karnataka High Court Chief Justice Dinesh Maheshwari and Justice Khanna.

The former CJIs had asked why judges like Justices Gita Mittal and Ravindra Bhat, both from the Delhi High Court, too, did not figure in the recommendation.

Several reasons have been assigned as to why the Collegium led by Chief Justice Gogoi changed its mind after December 12. These include unauthorised media leaks, “additional materials”, intervening Winter vacation and subsequent change in the composition of the Collegium on the retirement of Justice Madan B. Lokur during the holidays.

Finally, it has been reported that the CJI has the last word in recommendations for appointment to the Supreme Court.

The January 10 Collegium resolution explained that it took “certain decisions” on December 12, but consultations could not be done due to the winter vacation. When the court re-opened, Justice Arun Mishra joined the Collegium. Extensive deliberations held on January 5-6 led to a “fresh look” in the light of “additional materials that became available.”

The 1998 Special Reference case explains that when a Collegium judge retires in the midst of an appointment process and reasons are later made available for the non-appointment of the person under consideration, such reasons should be placed before the newly constituted Collegium.

Strong reasons

Further, the Second Judges Case (Supreme Court Advocates on Record Association versus Union of India) judgment in October 1993, and later the court’s opinion in the 1998 Special Reference, confirm that “strong cogent reasons” should be the basis for appointing a judge to the Supreme Court by superseding others senior to him.

Finally, both the 1993 judgment and 1998 opinion have held that the CJI’s “final opinion” is not merely his individual opinion. The CJI’s opinion “must necessarily have the element of plurality in its formation”.

The CJI’s view on a prospective judicial appointment has primacy because it ‘symbolises’ the opinion of the judiciary itself.

“View of the Chief Justice of India is to be expressed in the consultative process as truly reflective of the opinion of the judiciary,” the 1993 judgment observed.

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