The government on January 16 notified the appointment of Karnataka High Court Chief Justice Dinesh Maheshwari and Delhi High Court judge, Justice Sanjiv Khanna, as Supreme Court judges.
Their swearing-in ceremony is likely to take place by the end of this week, even as controversy swirled around the Supreme Court Collegium’s recommendation of Justice Khanna on January 10, 2019.
The Collegium led by Chief Justice of India Ranjan Gogoi unanimously recommended Justice Khanna’s name along with Justice Maheshwari's on January 10, despite objections raised by sitting apex court judge, Justice Sanjay Kishan Kaul.
Justice Kaul had complained about how Justice Khanna’s elevation would be at the cost of overlooking the seniority of other High Court chief justices and judges. Justice Khanna was ranked 33 in the High Court judges’ seniority list.
It was reported that the Collegium had at first decided to recommend Chief Justice of Rajasthan High Court Pradeep Nandrajog and Delhi High Court Chief Justice Rajendra Menon to the Supreme Court on December 12. Justice Kaul’s objection was part of the Collegium file sent to the Law Ministry for approval.
In its resolution dated January 10, the Collegium said “certain decisions” were indeed taken on December 12. However, it said, there was no time for the “required consultation” on the decisions taken on December 12 due to the intervening Winter vacations for the court and retirement of Justice Madan Lokur, which changed its composition.
The Collegium said “fresh” and “extensive” deliberations were held after the vacations by the newly constituted Collegium, in which Justice Arun Mishra replaced Justice Lokur. The Collegium said it had “deemed it appropriate to have a fresh look at the matter and also to consider the proposals in the light of the additional material that became available”.
The Collegium records that it found Justices Maheshwari and Khanna “more deserving and suitable in all respects than other Chief Justices and senior puisne judges of the High Courts”.
A former Delhi High Court judge, Justice Kailash Gambhir, has written to the President, saying the “earth-shattering” decision to recommend Justice Khanna by superseding 32 senior judges amounts to “casting aspersions on their intellect, merit and integrity.”
Justice Maheshwari was the subject of a letter written by Justice J.S. Chelameswar, now retired, to then Chief Justice Dipak Misra early in March 2018.
Justice Chelameswar, in his letter, had questioned an enquiry initiated by Justice Maheshwari, on the basis of a government letter, against a judge recommended by the Supreme Court Collegium for elevation to the High Court.
But former CJI R.M. Lodha said a Collegium decision is an “institutional decision” and cannot be changed because one Collegium member retired in the short interval between December 12 and January 10.
“When a decision is once taken, it has to be taken to its logical conclusion,” Justice Lodha said.
Justice Lodha said the Collegium has to be transparent about “why it dropped Justice Nandrajog and why Justice Maheswari, who was superseded a while ago by Justice Ajay Rastogi, is now once again the front-runner for the Supreme Court? Why was Justice Nandrajog picked first and then dropped?”
Former CJI K.G. Balakrishnan said it is quite irregular that the Collegium has sidelined the seniority and merit of three judges from the Delhi High Court — Justices Gita Mittal, Nandrajog and Ravindra Bhat — to recommend Justice Khanna.
“The Collegium does not usually overlook the seniority of three judges from the same high court to choose a fourth judge,” Justice Balakrishnan said.
“Collegium decisions are not just child’s play. Five judges of the Supreme Court have taken a decision on the appointment of a judge. What are the reasons for dropping that decision taken on December 12,” the retired CJI asked.
The former CJI said seniority is the prime consideration of the Collegium while recommending judges for the Supreme Court.
A retired Supreme Court judge, who preferred anonymity, pointed out that Justice Khanna’s legendary uncle, Justice H.R. Khanna, chose to resign in 1977 when he was superseded by another as Chief Justice of India after his historic dissent in the ADM Jabalpur case.
