Amid a row over their elevation, Justice Dinesh Maheshwari, Chief Justice of Karnataka High Court, and Justice Sanjiv Khanna of Delhi High Court were appointed judges of the Supreme Court Wednesday following Presidential approval.
The Ministry of Law and Justice notified the appointment of Justice Maheshwari: “In exercise of the powers conferred by clause (2) of Article 124 of the Constitution of India, the President is pleased to appoint Shri Justice Dinesh Maheshwari, Chief Justice of the Karnataka High Court, to be a Judge of the Supreme Court of India with effect from the date he assumes charge of his office.”
An identical notification was issued regarding Justice Khanna’s appointment.
The government notification came six days after the Supreme Court Collegium, headed by Chief Justice of India Ranjan Gogoi, recommended their elevation. The Collegium’s decision led to a row because it overturned decisions taken by it in December.
The change in the January 10 resolution stopped the elevation of Justice Pradeep Nandrajog, Chief Justice of Rajasthan High Court, and Justice Rajendra Menon, Chief Justice of Delhi High Court, who had been recommended for Supreme Court by the Collegium on December 12. That Collegium changed after Justice Madan Lokur retired on December 30 and Justice Arun Mishra was inducted.
Currently, the Supreme Court is functioning with 26 judges as against a sanctioned strength of 31 judges. With the two new appointments, three vacancies remain. As per convention and seniority, Justice Khanna is likely to the be Chief Justice of India in November 2024. He is the nephew of late Justice H R Khanna who was superseded for giving a dissenting verdict during the Emergency imposed by the Indira Gandhi government.
Justice Maheshwari was appointed judge of the Rajasthan High Court in September 2004 and was elevated as Chief Justice of Meghalaya High Court in February 2016. He was transferred to Karnataka High Court in February 2018. He stands at serial number 21 in the combined seniority of High Court judges on all-India basis.
He came under the spotlight for communicating directly with the central government when Justice Dipak Misra was Chief Justice of India. This prompted then puisne judge, Justice J Chelameswar, to write to CJI Misra and all brother judges on March 21, 2018, regarding the impropriety of such direct communication with the central government.
Justice Khanna was appointed judge of Delhi High Court in June 2005. He stands at Serial Number 33 in the combined seniority of High Court judges on all-India basis.
Hours before the government notified the appointments Wednesday, the Bar Council of India (BCI) protested the Collegium’s recommendation to elevate Justice Khanna, calling it “whimsical and arbitrary”. BCI chairman Manan Kumar Mishra asked the Collegium to recall its January 10 decision: “They (Justices Menon and Nandrajog) are men of integrity and judicial competence; nobody can raise a finger against these judges on any ground. The decision of 10th January, 2019 will certainly lead to humiliation and demoralisation of such judges and also of several other deserving senior judges and Chief Justices of High Courts.”
Justice Kailash Gambhir, a former judge of Delhi High Court, had written to President Ram Nath Kovind, saying the Collegium resolution, especially on elevating Justice Khanna, was “appalling and outrageous” because 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”
In its recommendation, the Collegium, however, said: “While recommending the names of Mr Justices Dinesh Maheshwari and Sanjiv Khanna, the Collegium has taken into consideration combined seniority on all-India basis of Chief Justices and senior puisne Judges of High Courts, apart from their merit and integrity. The Collegium has also kept in mind the desirability of giving due representation on the Bench of the Supreme Court, as far as possible, to all the High Courts.”
There has been disquiet among a section of the Supreme Court judges over the Collegium decision. At least three former senior judges reacted sharply to the Collegium decision. Justice Chelameswar told The Indian Express: “This is exactly why I refused to attend the Collegium meetings in 2016. I was told by legal luminaries then that I should resign and then speak. Now, I have retired, so should I speak?”
Former Chief Justice of India R M Lodha expressed surprise over the manner in which the Collegium, as an institution, was being impaired.
“The Collegium is an institution, it must work as one. Decisions taken by a Collegium must be taken to their logical conclusion. Only one judge had retired, if the process of consultation was not completed, it should have been. Why reverse the decision fully and not tell anyone? The Collegium must work transparently, as it is now put on the website. The reasons must be complete.”
Justice A P Shah, a former Chief Justice of Delhi High Court, said he was “disappointed at the way” in which the Collegium was being administered. “What has happened in this instance shows that the Collegium system continues to be opaque, secretive and unaccountable. The judges deciding the NJAC case spoke of reforms, what happened to that? There are no reforms, and no move to change anything,” he said.