The decision of the Supreme Court collegium in recommending the names of Justice Sanjiv Khanna of the Delhi High Court and Dinesh Maheshwari, the Chief Justice of the Karnataka High Court, for elevation to the Supreme Court eventually resulting in their appointments, has raised many eyebrows.
Justice Khanna stood at serial number 33 in the combined all-India seniority of high court judges, and Justice Maheshwari at serial number 21. The Collegium picked up Justice Khanna over the heads of as many as 32 justices including many chief justices, two of whom are from his own high court, while one is a puisne judge there. We can learn from the website of the Supreme Court that the collegium, while arriving at the said decision, has taken into consideration the combined seniority list of judges on an all-India basis apart from their merit and integrity.
Nobody’s making the case that seniority alone should be the guiding principle in the matter of elevation to the Supreme Court, but when, by one stroke, 32 judges including chief justices are passed over, it is bound to create a flutter and a feeling of unease. When individuals as low in seniority, as those of serial numbers 33 and 21, are picked up, it will be a travesty to say that seniority was taken into consideration. The fact is that seniority has been thrown to the winds.
While no one has an issue with regards to the merit and integrity of Justice Maheshwari and Justice Khanna, the observations of the Collegium are unflattering towards the others, if not bordering on casting aspersions on them. The resolution of the Collegium does not throw any light as to how it came to the conclusion that its two recomendees were head and shoulders above their senior peers. With due respect to the justices, the decision is anything but democratic or transparent.
Not very long ago, the Chief Justice of India along with three of his colleagues had held a press conference in which they had accused the then Chief Justice Dipak Misra of putting democracy in peril. How democratic this current move of the Collegium appears is now left to the people to judge, especially the legal fraternity. Surprisingly, those who were votaries of the collegium system and were at the forefront to defend the same when the matter was before the Supreme Court, are now conspicuous by their silence.
Hoping against all hope, some thought that the government would step in and send the file back to the Collegium for reconsideration. As it did in the case of Justice K M Joseph who, at the relevant time, was Chief Justice of the Uttarakhand High Court, citing his low seniority as one of the reasons that went against his elevation. Unfortunately, not only did the government not intervene, it acted with alacrity and undue haste in approving the names leading to rumours and speculations. Neither side, if I may say so, has covered itself with glory.
Incidentally, Justice Sanjiv Khanna happens to be the nephew of the legendary Justice H R Khanna who gave up his chief justice-ship of India at the altar of the independence of judiciary. It may be recalled that Justice H R Khanna was the lone judge who gave a dissenting judgment in the infamous ADM Jabalpur case in a bench of five, and upheld the citizens’ right to life, liberty and freedom. His judgment cost him his chief justice-ship as Indira Gandhi, unhappy with the judgment, ensured he was superseded by someone else. Justice H R Khanna consequently resigned. Now, when his nephew has adorned the bench of the Supreme Court by superseding 32 judges senior to him, he must be turning in his grave.
The writer is a former judge of the Delhi High Court