Collegium decisions are random: Proof? The resolution of January 10

The recommendation made by Supreme Court Collegium to elevate Delhi High Court judge Justice Sanjiv Khanna and Karnataka High Court Chief Justice Dinesh Maheshwari to the Supreme Court has flummoxed many at the Bar.

There is more than one reason for this.

Justice Khanna stands at number 33 in the combined seniority of High Court Judges on an all-India basis. However, as has been stated time and again, seniority is not the only consideration for elevation to the Supreme Court. Therefore, on this basis alone, the Collegium cannot be faulted for making the recommendation.

Justice Khanna is being directly elevated from his parent High Court, i.e. Delhi High Court to the Supreme Court. It has happened very rarely in the last two decades.

From December 1997 till date, only six judges have been elevated directly from their parent High Court – Justices S Abdul Nazeer, Ranjana Prakash Desai, Lokeshwar Singh Panta, GP Mathur, Ruma Pal and SS Quadri.

While this in no way reflects the competence of Khanna J., the fact that three senior judges of the Delhi High Court  – Justices Gita Mittal, Pradeep Nandrajog and Ravindra Bhat – have been superseded sans any explanation, is what has raised many an eyebrow.

On the other hand, the second judge who has been recommended, Justice Dinesh Maheshwari, was at the centre of controversy not too far long ago. Justice Jasti Chelameswar had written a strongly worded letter to then CJI Dipak Misra protesting the manner in which an elevation to the Karnataka High Court was interfered with by the government. In the letter, Chelameswar J. revealed how Chief Justice Dinesh Maheshwari was contacted directly by the Executive to reassess the recommendation of the Supreme Court Collegium to elevate then District and Sessions judge, P Krishna Bhat.

Criticizing Justice Dinesh Maheshwari’s role in the fiasco, Chelameswar J. wrote:

“Now the Chief Justice of Karnataka High Court informs us that he had received a communication from the Ministry of law and justice “to look into the issue.” The Chief Justice, establishing himself to be more loyal than the King, acts on it, convenes a meeting of the Administrative Committee, and decides to reinvestigate the issue, thus burying the previous Chief Justice’s findings on the same issue, given at our asking.”

What makes the matter more interesting is the fact that the Collegium had superseded Justice Maheshwari in appointing Justice Ajay Rastogi to the Supreme Court. The parent High Court of both the judges is the Rajasthan High Court, where they were appointed as judges on the same day. However, Justice Maheshwari was sworn in before Justice Rastogi and is, therefore, senior to Justice Rastogi. When the Collegium recommended Justice Rastogi, they superseded Justice Maheshwari. Now the Collegium has recommended a superseded judge to be elevated to the Supreme Court.

Interestingly, the names of Justices Maheshwari and Khanna were not in the zone of consideration in the last few months. Rather, the names that were doing the rounds included current Delhi High Court Chief Justice Rajendra Menon, Rajasthan High Court Chief Justice Pradeep Nandrajog, Jammu & Kashmir Chief Justice Gita Mittal, and Delhi High Court judge, Justice S Ravindra Bhat.

In fact, there were strong indications that the Collegium had decided on December 12 last year to elevate Justices Menon and Nandrajog to the Supreme Court.

However, no resolution to that effect was published on the Supreme Court website. The Court closed for the winter vacation on December 14, and Justice Madan Lokur retired during the vacation. When the Court reopened, the composition of the Collegium underwent a change and the Collegium decided to have a “fresh look at the matter”.

This is admitted in the  Collegium resolution of January 10.

“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. 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.”

Though a bit cryptic, this above paragraph, as extracted from yesterday’s Collegium resolution, says that certain decisions “were taken” on December 12. However, due to a change in its composition due to the retirement of one judge, there were extensive deliberations that ostensibly led to a change of heart.

Subsequently, two judges who were never in the zone of consideration have been recommended. Changing the “decisions taken” without any explanation has left many in the legal fraternity scratching their heads.

This resolution will go down as yet another decision that has failed to prop up the confidence in the Collegium system of judicial appointments.

Murali Krishnan is Associate Editor at Bar & Bench. He tweets @legaljournalist.