Supreme Court gets two more judges

Published : January 18, 2019 13:04 IST

Justice Dinesh Maheshwari, who was Chief Justice of the Karnataka High Court, and Justice Sanjiv Khanna, a judge of the Delhi High Court, were sworn in as Supreme Court judges today, taking the strength of the court to 28, three short of its sanctioned strength. The appointment of these two judges follows the recommendation to that effect by the Supreme Court’s collegium comprising the Chief Justice of India (CJI), Ranjan Gogoi and four most senior judges, namely, Justices A.K. Sikri, S.A. Bobde, N.V. Ramana and Arun Mishra. The Centre went ahead with the process to appoint these two judges despite a controversy over their superseding several judges senior to them in the all-India seniority of high court judges.  Justice Sanjay Kishan Kaul, a judge of the Supreme Court, wrote to the CJI asking what the hurry was to elevate Justice Sanjiv Khanna even if he was found more suitable in all respects than others in the consideration zone. 

On the basis of the retirement ages of judges of the Supreme Court and their seniority, Justice Sanjiv Khanna is likely to succeed Justice D.Y. Chandrachud as the CJI in 2024, and hold the post for six months. Judges of the Supreme Court retire at the age of 65, while judges of the High Court retire at the age of 62.  The convention is that the most senior judge of the Supreme Court is elevated as the CJI following the retirement of the incumbent on attaining superannuation.

The controversy is over the fact that in December the Supreme Court’s collegium had resolved to recommend the names of the Chief Justice of the Delhi High Court, Rajendra Menon, and the Chief Justice of the Rajasthan High Court, Pradeep Nandrajog, for appointment to the Supreme Court, but the recommendation was not forwarded to the Centre for want of adequate consultations with other judges as required under the Memorandum of Procedure (MoP). 

In January, a new judge, Justice Arun Mishra, joined the collegium following the retirement of Justice Madan B. Lokur, the second most senior judge on December 30. Considering the change in the composition, the CJI and the other judges of the collegium thought it fit to review the resolutions passed in December. 

According to reports in the media, the CJI was upset with the leaks of the names of judges recommended by the collegium in December in legal websites.  The December resolutions were not uploaded in the Supreme Court’s website, thus confirming that they were not final.  The reports also said that in the January meeting of the collegium, certain adverse materials concerning the judges recommended in December were brought to the notice of the members, who then decided to recommend new names in their place. These ad hoc changes have led to concerns whether the decision of one collegium could be jettisoned by another collegium and whether such changes are consistent with the law.

While such concerns have been expressed by prominent advocates of the Supreme Court such as Prashant Bhushan and Raju Ramachandran, sources close the CJI have informed a section of the media that the CJI has the power to decide whether to send a recommendation of the collegium to the Centre or not.

While the controversy is unlikely to die down in the near future, it is important to remember that seniority, while being an important criterion, is not a deciding factor while appointing high court judges to the Supreme Court. There are other considerations that influence a decision, including whether a judge being elevated will have a fair chance of becoming the CJI for a reasonable length of time, considering his or her retirement age. Therefore, supersession of high court Judges for appointment to the Supreme Court cannot be considered on the parameters which weigh in the case of supersession of Supreme Court judges for appointment as the CJI, which had in the past played havoc with the independence of the higher judiciary.

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