Supreme Court collegium, CJI and Law ministry under fire over appointment of judges

Justice Sanjiv Khanna, who along with Justice Dinesh Maheshwari was elevated to the Supreme Court on Wednesday evening, was 33nd in the All India Seniority List of high court judges. While he is acknowledged to be among the finest judges, the appointment has caused an uproar in legal circles because he is relatively junior. And the collegium by signaling that he is more deserving than 32 other Chief Justices and judges of high courts has upset those who have been left out.

While seniority is never the only criterion for selection of judges, it remains an important criterion. In fact the Union Government stalled the elevation of Justice K.M. Joseph, the then Chief Justice of the Uttarakhand High Court, for a long time on the ground that he was 42nd on the All India Seniority List. "In the All India High Court Judges' seniority list, Justice Joseph is placed at serial number 42. There are presently 11 chief justices of various high courts who are senior to him," the law ministry wrote then to the Supreme Court.

The letter also mentioned, “10 of the 24 high courts in India are currently not represented in the Supreme Court.” None of these two grounds have come in the way of the elevation of Justice Khanna of the Delhi High Court. There is outrage because legal circles believe there are meritorious judges in the Delhi High Court itself who are senior to Justice Khanna and deserved to be elevated before him.

One of the judges overlooked is the Chief Justice of Delhi High Court, Justice Rajendra Menon. Curiously, media reports in December had spoken of the collegium meeting on December 12 and clearing the names of Justice Menon and Justice Nandrajog for elevation. The decision, however, was not notified and uploaded on the Supreme Court’s website.

But the website now has the collegium’s recommendation taken in the second week of this month, which records that the decision taken in December was found unsuitable after consultations. What is intriguing is that between the two meetings of the collegium, Justice Madan Lokur retired and Justice Arun Mishra stepped into the collegium as the fifth senior most judge in the Supreme Court.

While former Attorney General Soli Sorabjee said the legal fraternity was over-reacting and while some lawyers have defended the collegium by arguing that fresh information may have been given to the collegium to change its mind, others are not convinced.

Legal website livelaw.in quoted Justice RM Lodha, former CJI as saying, "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. It is strange that Justice Maheswari is recommended six weeks after being superseded. Justice Nandrajog, then picked, is now dropped. If consultations were the problem, it should have been done fully."

Justice A P Shah, former Chief Justice of Delhi High Court, said, "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. What happened between December and January? I have worked with Justice Nandrajog and he is a very fine judge, as are others superseded. Why has the decision on Justice Menon been reversed is also a mystery. This will have a very demoralising effect on the system."