The Supreme Court collegium’s decision to elevate Karnataka High Court Chief Justice Dinesh Maheshwari and Delhi High Court judge Justice Sanjiv Khanna to the Supreme Court has become embroiled in controversy.
Last month, the Supreme Court had recommended the elevation of Justice Pradeep Nandrajog, the Chief Justice of Rajasthan High Court and Justice Rajendra Menon, the Chief Justice of Delhi High Court. However, a new collegium on January 10, which was formed after Justice Madan Lokur retired, decided to elevate Justice Maheshwari and Justice Khanna. The new collegium now comprises of the CJI and four other seniormost judges – Justice AK Sikri, Justice SA Bobde, Justice NV Ramana and Justice Arun Mishra.
The concern among senior judges
Retired senior judges as well as a sitting Supreme Court judge have responded sharply to the development and one of them has written to the President of India, seeking that the collegium reconsiders its decision.
Justice Sanjay Kishan Kaul, a sitting Supreme Court judge, has written to Chief Justice of India Ranjan Gogoi against the collegium’s decision. According to Bar and Bench, Kaul in his letter has stated that Justice Nandrajog is the senior-most among the judges in the zone of consideration and a wrong signal will be sent if he is passed over.
Former Delhi High Court judge Kailash Gambhir has written to President Ram Nath Kovind seeking his intervention in the collegium’s decision to elevate Justice Sanjiv Khanna to the Supreme Court.
“This (the collegium decision) is appalling and outrageous that such an earth-shattering decision has been taken to supersede as many as 32 judges which include many Chief Justices, casting aspersions on their intellect, merit and integrity,” Kailash Gambhir writes in his letter, adding, “I humbly urge your Excellency to kindly ponder over as the head of our largest democracy in the world with a robust judiciary and having remained a part of the legal fraternity and see yourself that the way the present collegium of five eminent senior judges have superseded almost 32 judges, how will the democracy and independence of judiciary in the country survive?”
An Indian Express report states that two other judges, former Chief Justice of India RM Lodha Justice A P Shah and former Chief Justice of Delhi High Court have also voiced their concerns over the collegium’s decision.
Justice Lodha told IE that it was “strange” that Justice Maheswari is recommended six weeks after being superseded and that Justice Nandrajog, who was picked earlier, has now been dropped.
Justice Shah told IE that he was “disappointed at the way” in which the collegium is being administered and that this decision shows that the collegium system continues to be “opaque, secretive and unaccountable.”
Why was Justice Nandrajog’s name dropped?
According to reports, the decision to elevate Justice Nandrajog was taken on December 12. However, the decision could not be implemented, as it was winter break. When the court reconvened, Justice Madan Lokur retired and Justice Arun Mishra was inducted into the collegium.
According to a report in the TOI, the CJI was upset that the decision to elevate Justice Nandrajog and Justice Menon was leaked to the media and decided to reconsider the decision. Later, during the January 10 collegium meeting, the members were notified of a judgement headed by Justice Nandrajog titled ‘F Hoffmann-La Roche Ltd vs Cipla Ltd', in which 35 paragraphs were plagiarised from an article from 2013. While Justices Nandrajog and Mukta Gupta had later admitted the mistake and had stated that a law clerk was responsible for the error, the instance seems to have swayed the collegium’s decision.
The judges at the centre of the controversy
Justice Dinesh Maheshwari was appointed the Chief Justice of the Karnataka High Court on February 12, 2018. Justice Maheshwari is the 21st senior-most judge in the combined seniority of High Court Judges on the all-India basis, states Bar and Bench.
Justice Sanjiv Khanna became a permanent judge on February 20, 2006. He is the 33rd senior-most judge in the combined seniority of High Court judges across India and is the third senior-most judge in the Delhi High Court.