President Ram Nath Kovind on Wednesday approved the elevation of Karnataka Chief Justice Dinesh Maheshwari and Delhi High Court judge Sanjiv Khanna to the Supreme Court as per the Collegium’s January 10 resolution despite disquiet among a section of judges of the apex court over the sudden decision.
The appointments of the two judges take the total strength of the Supreme Court to 28 as against a sanctioned strength of 31.
On December 12, the Collegium, which comprises the top five judges of the Supreme Court, had recommended Chief Justice of Delhi High Court Justice Rajendra Menon and Rajasthan High Court Chief Justice Pradeep Nandrajog for elevation to the top court.
But the decision was reversed on January 10 by the new Collegium, which decided instead to elevate Justice Maheshwari and Justice Sanjeev Khanna.
There has been 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 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 member 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.
The Karnataka Chief Justice had grabbed the spotlight when Dipak Misra was CJI and Justice Maheshwari was communicating directly with the Central government. This prompted Justice J Chelameswar, who retired last year, to write to the CJI and all brother judges on March 21, 2018, regarding the impropriety of such direct communication with the Centre.
On March 29, 2018, Justice Chelameswar, in his letter, also came down heavily on Justice Maheshwari for reopening an inquiry 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.