A letter dated January 14, 2019, sent by Justice Kailash Gambhir (Retd), Delhi High Court to the President of India has gone viral. “Collegium of Supreme Court has recommended the elevation of Dinesh MaheshwariJ, Chief Justice Karnataka High Court and Sanjeev KhannaJ, Delhi High Court, to the Supreme Court.” He has flagged of that the elevation of Sanjeev KhannaJ -nephew of the legendary Justice H. R Khanna - would 'supersede as many as 32 judges which includes many chief justices, casting aspersions on their intellect, merit and integrity…It cannot be forgotten, that it is just one and half month back the then Collegium had superseded Dinesh MaheswariJ and now out of the blue, he becomes more deserving and suitable within a short gap.”
Even as we were hit by this missive from a learned judge, who may know a thing or two about the affairs of Collegium, more than the 'corridor talk' (which too is always believable and trustworthy according to Motilal Setalvad first Attorney General of India), we have the spectacle of Justice Sanjay Kishan Kaul, puisne judge Supreme Court, writing to the CJI “on the substitution of Dinesh Maheswari and Sanjeev Khanna for the Rajasthan and Delhi Chief Justices Pradeep Nandrajog and Rajendra Menon for elevation to the Supreme Court”. Justice Kaul, formerly Chief Justice of Madras High Court, has also adverted to 'seniority' being given an unfair miss.
Excuse me, dear reader, at one level, it all may seem shocking that such correspondences are now getting revealed contemporaneously and the public is getting to know of it. Considering the high constitutional offices involved, they do matter. But, is it anything new or that judiciary is in a churn? As Justice Ruma Pal famously said, “Collegium affairs are the best kept secret in the world.”
Collegium itself is a judicially legislated animal. Our forefathers had never ever anticipated such an eventuality of judges anointing themselves, an unheard of phenomenon in any democratic polity. Arun Jaitley was not far wrong when he christened the verdict of top court declaring the National Judicial Appointments Commission Act to be unconstitutional, by a majority of 4:1 as symptomatic of 'unelected tyranny'. It may appear that “Judges having tasted the choice of choosing their brethren by themselves are unwilling to let go” (Justice V R Krishna Iyer).
Be that as it may, this debate between merit vs seniority is not a new kid on the block. It is as old as the hills with no arithmetical accuracy possible. The element of subjectivity in Collegium affairs is a worrisome element and it may be time for the warring politicians to get together one more time to fix the system with a NJAC that may pass muster. Or at least, try.
Forget not that Justice K. M. Joseph, now puisne judge of the apex court got elevated from Chief Justice of Uttarakhand High Court, only after a back and forth assertions/exchanges between the Collegium and Law Ministry as ' he was 42nd in all India seniority and there were 11 Chief Justices of High Court ahead of him then'. When the executive talked of seniority and 'representation to all sections and states' it was construed as being partisan, as Justice Joseph had set aside the Presidential proclamation to dismiss the Congress ministry in Uttarakhand. Now what? The 'insiders' are talking of it. What are we to make of it?
Chief Justice Ranjan Gogoi himself was elevated to Supreme Court ahead of the following colleagues Justices Madan B. Lokur, Kurian Joseph, A.K. Sikri, S.A. Bobde, R.K. Agrawal, N.V. Ramana, Arun Mishra, A.M. Khanwilkar, A.M. Sapre and D.Y. Chandrachud, all senior to him.Justices S. Abdul Nazeer and Mohan M. Shantanagoudar, now puisne judges of Supreme Court, are junior to 14 before the High Courts. At the time of their appointment, over 20 judges were senior to them.
Father of our Constitution, Babasaheb Ambedkar said, “There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself. And the question is how these two objects could be secured”, during the Constituent Assembly debates. To illustrate, there was this exchange between the then Chief Justice of India and President of India, in 1999. President wrote on the file “I would like to record my views that while recommending the appointment of Supreme Court judges, it would be consonant with constitutional principles and the nation's social objectives if persons belonging to weaker sections of society like SCs and STs, who comprise 25 per cent of the population, and women are given due consideration. Eligible persons from these categories are available and their under-representation or non-representation would not be justifiable. Keeping vacancies unfilled is also not desirable given the need for representation of different sections of society and the volume of work the Supreme Court is required to handle.” To which the Chief Justice responded. “I would like to assert that merit alone has been the criterion for selection of Judges and no discrimination has been done while making appointments.”
Going back, even further, “Kania (First Chief Justice of India) offered me a judgeship of the Federal Court before the Constitution came into force. He assured me that in the ordinary course, I should succeed him as Chief Justice when he retired. Poor man, he did not know that he was to pass away before he reached his retiring age. I declined the offer because I thought that I was doing more useful work as Chief Justice of Bombay, than I would be doing as a puisne judge in the Supreme Court. Among others, I consulted Setalvad. He agreed with me that I should not accept a puisne judgeship, but should accept the Chief Justiceship if it was offered to me after Kania retired.”
“When Kania died, I understand Setalvad unknown to me, strongly pressed my claim with Nehru. Nehru seemed agreeable. Setalvad soon after, sailed for England. And I have this from his junior, G.N. Joshi, that when Setalvad returned and Joshi met him at the airport, Setalvad asked him whether I was settled in Delhi. Joshi told him what had happened. It transpires that the judges of the Supreme Court threatened to resign if the seniority rule was not followed, and the government yielded to the threat. Looking back, I am not sorry that this happened. I would not have then had the varied career which I eventually had. This is yet another of these ‘contingents’ which changed the course of my life.”- (Roses in December- Chief Justice M.C. Chagla)
Justice Sanjeev Khanna is in the eye of the storm. What would his uncle, the one and only justice H.R. Khanna have said on this debate, if alive,- “I shudder to think of the future shape of things when the different wings of the administration are dominated by mediocrity while merit has to take a back seat…All over the world, the accent is on excellence and one wonders where we shall stand by pursuing the above policy in the global market of competing standards of excellence.” Now that Sanjeev Khanna has been elevated, do we expect 32 seniors to resign or resign themselves to their fate?
(The writer is practising advocate in the Madras high court)
