Supreme Court judges unhappy as collegium ignores seniority in judge selection

File photo of Supreme Court | Manisha Mondal | ThePrint

In light of the collegium decision, Supreme Court judges are reportedly discussing ways to protect ‘institutional decisions’.

New Delhi: Many Supreme Court judges are reportedly unhappy with the collegium’s decision to revoke its recommendation to elevate Rajasthan High Court Chief Justice Pradeep Nandrajog to the top court, and choose two juniors instead.

Anguished by the sudden reversal, many top court judges are now discussing ways to protect “institutional decisions”, The Times of India reported Wednesday.

On 10 January, the five-member Supreme Court collegium, led by Chief Justice of India Ranjan Gogoi, recommended Karnataka High Court Chief Justice Dinesh Maheshwari and Delhi High Court judge Sanjiv Khanna for elevation to the apex court.

In doing so, sources said, it had revoked a decision taken in December last year to recommend Justice Nandrajog, the most senior judge from the Delhi High Court, and Delhi High Court Chief Justice Rajendra Menon, who is originally from Madhya Pradesh High Court.

According to the TOI report, Supreme Court judge Sanjay Kisan Kaul has pointed out in a letter to CJI Gogoi that Nandrajog is the most senior of the judges being considered for elevation. If he was passed over, he reportedly wrote, it would send a wrong signal.

The recommendation of Justice Khanna meant the Supreme Court superceded three judges senior to him at the Delhi High Court, which is his parent court. They are Justice Nandrajog, J&K High Court Chief Justice Gita Mittal and Delhi High Court Judge Ravindra Bhat.

In fact, Nandrajog and Menon are both senior to Maheshwari and Khanna. While Chief Justice Maheshwari is number 21 on the all-India seniority of high court judges, Justice Khanna is at 33. Chief Justices Menon and Nandrajog stand at serial numbers 3 and 4 in the all-India seniority.

In his letter, Kaul clarified that he had nothing against Khanna, but said that the Delhi High Court judge could wait his turn.

More disquiet brewing?

The same concerns were raised by former Delhi High Court judge Kailash Gambhir in a 14 January letter to President Ram Nath Kovind in which he sought his intervention to preserve the “credibility and independence of the judiciary”.

“It cannot be forgotten, that it is just one and a half month back the then collegium members of Supreme Court had superseded Hon’ble Justice Dinesh Maheshwari and now out of the blue, he becomes more deserving and suitable within such a short gap (sic),” says Justice Gambhir’s letter.

Seniority had become a big issue last year when the Narendra Modi government sat on the collegium’s recommendation to elevate Uttarakhand High Court Chief Justice K.M. Joseph. At the time, the government had said Justice Joseph’s elevation would result in the supersession of other judges.

‘There has to be some explanation’

The 10 January decision was taken days after the retirement of Supreme Court judge Madan Lokur, originally from Delhi High Court and the senior-most judge of the Supreme Court after CJI Gogoi.

Justice Arun Mishra has taken Justice Lokur’s place as the fifth member of the SC collegium. Justice Lokur has refused to comment on the matter.

“It is a matter of great speculation as to what new material came up so as to get the new collegium to rescind the earlier decision to recommend the names of chief justices Menon and Nandrajog and instead recommend Chief Justice Maheshwari and Justice Khanna,” said a former chief justice of India.

“We were told that all members of the earlier collegium, of which Justice Lokur was a part, had even signed the minutes containing the decision. There has to be some explanation,” the former CJI added.

In what could well be a hint to the answer, however, the decision of the collegium meeting of 10 January, made public by the Supreme Court on its website, carries a paragraph about it.

“The then collegium on 12th December 2018 took certain decisions. However, the required consultation could not be undertaken and completed as the winter vacation of the court intervened,” it reads.

“By the time the court re-opened, the composition of the collegium underwent a change. After extensive deliberations on 5th/6th January 2019, the newly constituted collegium deemed it appropriate to have a fresh look at the matter and also to consider the proposals in the light of the additional material that became available.”

While it doesn’t explain why Chief Justices Menon and Nandrajog were suddenly found unsuitable for elevation, it does talk about the decision to recommend Chief Justice Maheshwari and Justice Khanna.

“The collegium is of the considered view that at present the following persons are more deserving and suitable in all respects than other Chief Justices and senior puisne Judges of High Courts, for being appointed as Judges of the Supreme Court of India.”