india

Updated: Jan 16, 2019 22:29 IST

The Union government on Wednesday cleared the names of two judges for elevation to the Supreme Court even as the higher judiciary plunged deeper into controversy with former members of the apex court’s collegium questioning its decisions and asking for more transparency in the selection process.

The five-member body is under scrutiny after it emerged that it reversed a December decision to elevate two high court chief justices to the apex court and instead picked two others in January, in the process superseding several other judges on the all-India seniority list of high court judges.

The elevation of the two justices, Dinesh Maheshwari and Sanjiv Khanna, was cleared by the government in separate orders. Hours before that, the Bar Council of India and the Delhi Bar Council issued strongly worded statements suggesting the collegium’s recommendations went against the “seniority principle”.

The row comes a year after the four senior-most Supreme Court judges after the Chief Justice of India (CJI) held an unprecedented press conference where they disagreed with then-CJI Dipak Misra’s style of functioning, said he was assigning important cases to junior judges, and suggested a “consultation-led process” among the top five judges and a set of guidelines for deciding on the case roster and work allocation.

Three of those judges — justices J Chelameswar, Kurian Joseph and Madan Lokur — have retired since, as has Misra. The fourth, justice Ranjan Gogoi, is the present CJI.

On December 12, the collegium comprising justices Gogoi, Lokur, AK Sikri, SA Bobde and NV?Ramana decided to elevate justice Pradeep Nandrajog, chief justice of the Rajasthan high court, and justice Rajendra Menon, chief justice of the Delhi high court. On January 10, a reconstituted collegium, with justice Arun Mishra replacing retired justice Lokur, instead picked Karnataka high court chief justice Maheshwari and justice Khanna of the Delhi high court. To be sure, the first decision wasn’t displayed on the court’s website as such decisions are. Nor was it sent to the law ministry.

As controversy brewed over the decision, led by former Delhi high court judge Kailash Gambhir who wrote a letter to President Ram Nath Kovind on Tuesday describing the reversal as a “black day”, former chief justices of the Supreme Court said the goings-on were “a sad moment” for the judiciary.

“The collegium is not an individual thing. It is an institution and institutional decisions cannot be a changed because of change in composition. Moreover, a lot of thought goes into collegiums decisions,” former CJI RM Lodha said.

“In the present case, the only judge who was changed was justice Lokur because of his retirement. Four judges were the same, and even if there was additional material that was brought forth, the collegium should have first disposed of the elevation cleared before considering the new names,” he added.

Juctice Lodha also hit out at the way the collegium recommended the elevation of justice Maheshwari. “The case of justice Maheshwari is a curious one. Six weeks back, when the collegium was considering a judge from Rajasthan for elevation, they found justice Maheshwari not suitable and recommended justice Ajay Rastogi. Now suddenly, after six weeks, he is found to be deserving. We cannot find in the collegium resolution why this happened. There is no transparency in this exercise,” he said. “The present episode shows that not much has changed in the Supreme Court in the last one year following the press conference.”

Another former CJI, justice JS Kehar said: “Whatever is happening is not good for the institution. I believe that if there is a controversy it should be sorted out by wider consultations.”

A third former CJI, justice KG Balakrishnan, endorsed the view. “It’s a sad thing that such a thing has happened in Supreme Court. Seniority as a principle is generally not violated for appointments. There are some cases where the senior judge may not be suitable for appointment but there is a way for dealing with such situations. When faced with such a situation, I let the senior judge retire before elevating the junior judge.”

Retired justice Gyan Sudha Mishra of Supreme Court said she found it “very surprising that the names were changed without any rhyme or reason”. What exactly was the extraordinary reason for which the collegium changed the names within a month of the last meeting?” she asked.

Of the retired judges who were part of last year’s press conference, justices Chelameswar and Kurian Joseph could not be reached despite repeated attempts and justice Lokur declined to comment.

A government official, who asked not to be named, argued that while every decision of the collegium is uploaded as “Resolutions of Collegium” on the Supreme Court website, there is no record for the December 12, 2018 decision that reportedly recommended the elevation of justices Nandrajog and Menon, suggesting that the names were not “officially recommended”. The official also pointed out that while the elevation of justices Maheshwari and Khanna was ahead others senior to them, there are three more vacancies in the court.

Senior advocate Rajiv Nayar, an HT columnist, wrote in a commentary on Wednesday that justice Khanna’s appointment to the Supreme Court would entail the supersession of chief justices Nandrajog of the Rajasthan high court, and his Delhi and Jammu and Kashmir counterparts S Ravindra Bhat and Gita Mittal. “Suppose, for example, we were in the pre-collegium system, such a decision would have been described as being arbitrary and whimsical because all of the three proposed to be superseded are fine judges and are neither lacking integrity nor judicial competence,” he wrote.