What has really ruffled feathers within the judiciary is that the Collegium actually revisited an earlier order, which had names of more senior judges, and revoked it.

The Supreme Court collegium is in the midst of controversy again. This time, the forum comprising five senior-most judges of the Supreme Court including the Chief Justice of India, face flak for recommending the elevation of two judges to the apex court, in the process, superseding at least 32 others who rank higher in seniority. The collegium members have faced criticism from the members of the judiciary. But that's not quite the gist of the row.

What has really ruffled feathers within the judiciary is that the collegium actually revisited an earlier order, which had names of more senior judges, and revoked it.

What is the controversy?

The collegium — consisting Chief Justice Ranjan Gogoi, Justices Madan B Lokur, AK Sikri, SA Bobde, and NV Ramana — met on 12 December, 2018, and decided on appointments to the apex court. However, after Justice Lokur retired on 31 December, the new Collegium, now including Justice Arun Mishra met again on 10 January, and revoked the earlier decision and recommended fresh names.

This change in resolution stopped the elevation of Rajasthan High Court Chief Justice Pradeep Nandrajog and Delhi High Court Chief Justice Rajendra Menon to the Supreme Court. Instead, the names of Justice Dinesh Maheshwari, Chief Justice of Karnataka High Court, and Justice Sanjeev Khanna of Delhi High Court were added to the list of recommendations being sent to the Cabinet for further approval and presidential assent.

The pretext for revisiting the old order was that "the required consultation could not be undertaken and completed as the winter vacation of the Court intervened."

The new resolution also stated that by the time the court re-opened, the composition of the collegium underwent a change and hence after extensive 'consultations' it was decided to revisit the matter "and also to consider the proposals in the light of the additional material".

The term "required consultation" here is explained in a subclause of the memorandum showing the procedure for appointment of the CJI and judges of the Supreme Court of India. It states, "The CJI would ascertain the views of the senior-most judge in the Supreme Court, who hails from the High Court from where the person recommended comes, but if he does not have any knowledge of his merits and demerits, the next senior most Judge in the Supreme Court from that high court should be consulted."

However, as senior advocate Prashant Bhushan points out in an article he wrote for The Wire, three judges in the Collegium at that time had worked with Chief Justice Nandrajog and one had worked with Chief Justice Menon, while three others were aware of Chief Justice Menon's functioning while having been judges in the Delhi high court. Hence, the senior-most judges who worked with the judges, whose elevation now stands thwarted, were already part of the Collegium. Therefore the need for fresh and outside consultations after the Collegium was reconstituted remains open for debate.

This was a move which was frowned upon, and at least four retired senior judges have raised their objection to it.

Criticism of order

Justice Kailash Gambhir, former Delhi High Court judge was the first to raise an objection on the issue. He wrote a letter to President Ram Nath Kovind raising an objection to the manner in which the collegium took back an earlier order and promoted judges superseding 32 other senior members of the judiciary.

The letter, written on Monday, mentions that Justice Khanna is the nephew of late Justice HR Khanna who was superseded after he gave a dissenting verdict during the Emergency by not supporting the view that even a fundamental right can be curtailed in certain circumstances. Just like Justice HR Khanna's supersession was termed as a "black day" in the history of the Indian judiciary, it would be another black day when there will be supersession of 32 judges who are senior to Justice Sanjiv Khanna and many of them may be no less meritorious and men of integrity than him, the letter states.

In the letter, the former Delhi High Court judge also said that when he saw the news on TV channels on 11 January that the collegium has recommended elevation of Justices Maheshwari and Sanjiv Khanna to the apex court, at first, he disbelieved it.

Moreover, former Chief Justice of India RM Lodha on Wednesday said that he was surprised to know that a junior judge was recommended for elevation to the Supreme Court, superseding senior judges.

"What I always feel is that the collegium should act in a transparent manner, and reasons must be forthcoming why the decision was an upturn. There must be transparency. I have always believed that the collegium works as an institution. It is an institutional body; it is not an individual's decision. If the consultation or communication between the collegium was lacking, that could have been done. A junior judge was superseded to the Supreme Court, it surprises me," former CJI Lodha said in an interview to ANI.

"Look, it is little disturbing," he said while replying to a question as to how unfortunate it is for the judiciary that junior judges are being recommended for elevation to the Supreme Court prior to their seniors.

Reportedly, Supreme Court judge Justice SK Kaul also wrote a letter to CJI Gogoi against the elevation of Justice Khanna, ignoring the seniority of Justice Nandrajog. As per reports, Kaul said that while he had nothing against Justice Khanna, the latter could wait for his turn to be elevated.

Discussion over Collegium not a first

This is not the first time that the Collegium is making headlines. In January 2018, a long drawn controversy played out after the Centre sat on Collegium's suggestion to elevate Justice KM Joseph and later sent it back for reconsideration. Eventually, Joseph was sworn in as a Supreme Court judge after the collegium reiterated his name making his appointment binding on the Centre. The issue was also reportedly one of the triggers behind the unprecedented judges' press conference on 12 January 2018.

The Centre was accused of delaying the file sufficiently to affect Justice Joseph's seniority, thereby impeding his elevation in the apex court in the due course of time. The senior most judge of the Supreme Court is traditionally nominated to be the Chief Justice of India, unless the Cabinet decides to supersede him. Such a move, however, is frowned upon.

The seniority of a Supreme Court judge is calculated starting from the day he took the oath of office in the apex court. The unnecessary delay in Joseph's case lowered his seniority. Furthermore, when his name was finally cleared, the government mentioned him third in the list of five judges that were elevated with him. This was a small difference, but, nonetheless, contributed to further lowering Joseph's seniority.

As an article in The Indian Express points out, there is no stated rule to decide the seniority of judges whose appointment orders were issued on the same date. As these orders are issued by the government in a sequence, the practice has been for the CJI to administer the oath in the same order. The article further cites an example stating ex-CJI Misra and Justice (retired) J Chelameswar were sworn in on the same day but, as Misra’s warrant was numbered above that of Justice Chelameswar, he was sworn in first. This ensured that he became CJI, deemed as senior to Justice Chelameswar.

Before this, the merit of the entire collegium system was under scrutiny when the government unsuccessfully tried to bring in the National Judicial Appointments Commission (NJAC). The collegium system has not been set by any act in the Constitution; rather it came into being as a result of successive Supreme Court judgments when voices were raised against 'politically motivated' appointments in the upper judiciary. However, although the collegium brought greater independence in the functioning of the higher judiciary, critics argued that the process promoted nepotism and made appointments non-transparent.

The Supreme Court struck down the NJAC, although it did admit to the need for greater transparency in its functioning. Justice J Chelameswar, the only judge to dissent against his colleagues, made the same point.

"There is no accountability in this regard. The records are absolutely beyond the reach of any person including the judges of this court who are not lucky enough to become the Chief Justice of India. Such a state of affairs does not either enhance the credibility of the institution or good for the people of this country," Chelameswar wrote in his judgment.

The Supreme Court said it would revise the current Memorandum for the appointment of judges to ensure greater transparency. But as that remains a pipe dream, the collegium system continues to function as before.

With inputs from PTI and ANI