The Supreme Court Collegium resolution last Thursday that overturned decisions taken by it in December — of elevating two High Court Chief Justices to the apex court — has generated disquiet among a section of the judges of the court.
The change in 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 the Supreme Court by the Collegium on December 12.
The Supreme Court, which has a new Collegium that held its first meeting on January 10, decided instead to elevate Justice Dinesh Maheshwari, Chief Justice of Karnataka High Court, and Justice Sanjeev Khanna, a judge of Delhi High Court.
The Collegium, comprising five most senior judges of the Supreme Court, has seen the induction of Justice Arun Mishra after the retirement of Justice Madan Lokur on December 30. Justice Lokur, when contacted, said he had “no comments” to offer.
The Indian Express has learnt that there is disquiet among a section of the judges, regarding “the sudden move to just shelve the decisions arrived at in December, without either making that decision public, or stating why it needed to be reversed”.
The January 10 resolution of the Collegium stated that the Collegium meeting in December “took certain decisions”. Sources have confirmed to The Indian Express that among the “certain decisions” taken and resolved by the Collegium were the elevation to the Supreme Court of Justices Nandrajog and Menon. The resolution, however, was neither made public on the website nor is known to have been officially communicated to the Law Ministry.
The January resolution states that the decision taken a month ago was not communicated or placed in the public domain because “the required consultation could not be undertaken and completed as the winter vacation of the Court intervened”.
This is a reference to Clause 8 of the Memorandum of Procedure (MoP) which reads, “The Chief Justice of India, in consultation with other Judges in the Collegium, would ascertain the views of such Judges of the Supreme Court, who have worked in the High Court in which the person being considered for elevation has worked.”
Three members of the December Collegium had worked with Justice Nandrajog and one members of the Collegium had worked with Chief Justice Menon, while three others were aware of his functioning as they had been judges in the Delhi High Court.
Clause 8 of the MoP is not mandatory; the Chief Justice would “in consultation with other Judges in the Collegium” ascertain the views of judges outside the Collegium.
As per the prevailing practice, the decision of the Collegium taken on January 10, along with the opinion of the ‘consultee judges’, must have been communicated to the Government since it has been uploaded on the website of the Supreme Court.
Incidentally, one of the judges elevated to the Supreme Court by this Collegium resolution is Chief Justice of Karnataka, Justice Dinesh Maheshwari (parent High Court — Rajasthan). He was in the news when Justice Dipak Misra was Chief Justice of India and Justice Maheshwari was communicating directly with the central government. This prompted then puisne Judge, Justice J Chelameswar, to write to Justice Misra and all brother judges on March 21, 2018, regarding the impropriety of such direct communication with the central government.
As reported by The Indian Express on March 29, 2018, Justice Chelameswar, in his letter, also came down heavily on Justice Maheshwari for reopening an enquiry against a judge on receiving a complaint from the Law Ministry when his predecessor in 2017 had called the allegations against the judge as “baseless… only to malign” him.