Amidst ongoing controversy over their elevation, the issued notifications to appoint two new judges, Justices Sanjiv Khanna and Dinesh Maheshwari, to the Supreme Court, despite the Bar Council’s protests against the Collegium’s recommendation to elevate Justice Khanna.
The government notification comes within a week of the Collegium’s recommendation, which has been touted as arbitrary and whimsical by protestors who have questioned the reversal of its December decision. A faction of the court has expressed concern regarding the sudden move to just shelve the decisions arrived at in December, without either making that decision public, or stating why it needed to be reversed.
The Supreme Court Collegium is headed by the Chief Justice of India Ranjan Gogoi.
The notification
The Ministry of Law and Justice on Wednesday notified the appointments of Justice Maheshwari in a circular that read, In exercise of the powers conferred by clause (2) of Article 124 of the Constitution of India, the President is pleased to appoint Shri Justice Dinesh Maheshwari, Chief Justice of the Karnataka High Court, to be a Judge of the Supreme Court of India with effect from the date he assumes charge of his office. An identical notification declared the elevation of Justice Khanna of Delhi High Court.
What happened since December
Their appointments to the country’s apex court come after an amendment was introduced to the January 10 resolution. This change had foreclosed the elevation of Justice Pradeep Nandrajog, Chief Justice of Rajasthan High Court, and Justice Rajendra Menon, Chief Justice of Delhi High Court earlier this month. They had been recommended for Supreme Court on December 12 by the Collegium whose composition changed with Justice Madan Lokur’s retirment on December 30. Lokur was replaced by Justice Arun Mishra.
The Supreme Court is currently running on 26 judges, as opposed to the sanctioned 31. Justices Khanna and Maheshwari were sworn in on Friday, taking the working strength of the court to 28.
Concerns
The catch, however, is that the appointment of the Chief Justice of India works, as per convention, on the basis of seniority. The seat will also be up for contention in November 2024. This means Justice Khanna, who will be 64 then, is next in line for the role. It is worth noting that Khanna is related to late Justice H R Khanna who had given a dissenting verdict during the Emergency imposed by the Indira Gandhi government and was subsequently superceded.
Justice Maheshwari was appointed a judge of the Rajasthan High Court in September 2004 and was elevated as Chief Justice of Meghalaya High Court in February 2016. He was transferred to Karnataka High Court in February 2018. The collegium had superseded him in October last year when it recommended the elevation of the then Chief Justice of the Tripura High Court, Justice Ajay Rastogi originally from the Rajasthan High Court to the Supreme Court.
He also landed himself in controversy last year, for having a direct line of communication with the central government when Justice Dipak Misra was CJI.
In March, then puisne judge, Justice J Chelameswar, had written to CJI Misra and other senior judges regarding this impropriety. Justice Chelameswar criticised him for reopening an enquiry against a judge on receiving a complaint from the Law Ministry when his predecessor in 2017 had called the allegations against the judge as baseless
only to malign him.
January resolution
Khanna and Maheshwari’s elevations have generated a massive disquiet among a faction of the top court, especially because of the way in which the Collegium rescinded their choices within weeks. The January 10 resolution, whereby Justices Menon and Nandrajog were finalised for elevation, was not uploaded on the website nor officially communicated to the Law Ministry which should have happened.
According to the resolution, the decision taken on December 15 was not communicated or placed in the public domain because the required consultation could not be undertaken and completed as the winter vacation of the Court intervened, referring to Clause 8 of the Memorandum of Procedure (MoP) which reads, The Chief Justice of India, in consultation with other Judges in the Collegium, would ascertain the views of such Judges of the Supreme Court, who have worked in the High Court in which the person being considered for elevation has worked.
According to the Indian Express, Clause 8 of the MoP is not mandatory.
Prarthana Mitra is a staff writer at Qrius