New Delhi: The appointments of Justice Dinesh Maheshwari and Justice Sanjiv Khanna to the Supreme Court have triggered a controversy over the Supreme Court collegium’s apparent indifference to the principle of seniority of high court judges in the all-India list and to inter-se seniority within the high courts which they were serving before their elevation.The Supreme Court’s nine-judge bench had rightly held in the Second Judges case in 1993 that unless there are strong cogent reasons to justify a departure, the order of seniority (both inter-se among judges in the high court and their combined seniority on all India basis) must be maintained among the high court judges.A close look at the seniority list shows that there were indeed strong cogent reasons to justify a departure. If only the collegium took the trouble to articulate those reasons, the controversy could have been mitigated, if not completely avoided.Merits of leakInstead, “sources close to the CJI” told the Times of India that certain adverse materials about the two judges recommended by the collegium in December were brought to the attention of the collegium members in January. Besides, Chief Justice of India Ranjan Gogoi was reportedly upset with the December resolutions being leaked to some legal websites. He unilaterally withdrew the resolutions signed by the collegium members in December.These two reasons, if correct, were most unfortunate. It not only casts aspersions on the two sitting judges – whose eligibility was considered and abandoned – but also speaks poorly of the CJI’s respect for the freedom of the media. Why should the leaks upset him at all? If the leaks only confirmed the resolutions, do the CJI or the collegium members stand to lose their prestige or authority? On the other hand, if the leaks were contrary to the resolutions, it is the reputation of the media houses which published the leaks which is at stake, not that of the collegium.Also Read: Master of Roster Has Also Become the Master of CollegiumThe CJI only has to recall how in 2009, Justice P.D. Dinakaran’s elevation as Supreme Court judge was halted after the collegium unanimously recommended him. The collegium’s resolution being leaked to a section of the media galvanised the campaign against his appointment and gathering of adverse materials against him, which made the collegium rethink.Chief Justice Ranjan Gogoi expressed concern over the CBI’s situation. Credit: PTIHigh court judges are not less competentWhile the January 10 resolution of the collegium is silent on the two reasons attributed to “sources close to the CJI”, it cited three reasons for withdrawing the December resolution: one, the winter vacation of the Court had intervened; second, the required consultations had not taken place; and three, the composition of the collegium had changed in January, with the retirement of Justice Madan B. Lokur and the admission of Justice Arun Mishra.Most unfortunate, the January 10 resolution said:The Collegium has discussed names of Chief Justices as well as senior puisne Judges of all High Courts, eligible for elevation to the Supreme Court. The Collegium is of the considered view that at present the following persons (Justices Maheshwari and Khanna) 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.It was most unfortunate because the phrase “more deserving and suitable in all respects than other Chief Justices and senior puisne Judges of High Courts” is not only trite, but could be offensive to the judges who were overlooked.The Supreme Court collegium should not give credence to the imaginary view that the calibre of high court judges is somewhat inferior to that of the Supreme Court judges. It has to be recognised that only a few high court judges could make it to the Supreme Court, in view of considerations of seniority, and the necessity to ensure geographical and social diversity in the apex court, apart from merit.Therefore, there could be high court judges who are more deserving and suitable than those who were recommended by the collegium on merit, but could not be elevated, due to other reasons. Examples of such high court judges who could not make it to the Supreme Court include former chief justices of Delhi high court, the late Rajinder Sachar, A.P. Shah, Justice G.P. Singh, who was the chief justice of Madhya Pradesh high court from 1978 to 1984 and former chief justice of Himachal Pradesh high court Justice Leila Seth.Need for safeguardsCritics of the January 10 resolution may indeed be correct in saying that the CJI could not unilaterally rescind a resolution passed by the collegium in its previous meeting and that he ought to have taken its consent for doing so, before its composition changed. This aspect of the functioning of the collegium indeed requires certain safeguards, which were not envisaged by the Supreme Court’s Constitution bench in the National Judicial Appointment Commission (NJAC) case, when it gave a consequential judgment in December 2015 to reform the collegium, after striking down the NJAC Act as unconstitutional.While the revised Memorandum of Procedure (MoP) on the basis of the guidelines laid down by the bench is still hanging fire three years after that judgment, the CJI’s unilateral rescinding of the December 12 resolution should necessitate specific changes in the MoP to dilute scope for arbitrary decisions by the CJI.Justices Maheshwari and Sanjiv Khanna. Credit: The WireLatest appointments to the SCHaving said that, let us look at the contours of the supersession of the high court judges, in the light of the latest appointments.Justice Dinesh Maheshwari retires as Supreme Court Judge on May 14, 2023. His initial date of appointment as additional judge was September 2, 2004.According to the collegium’s resolution, he stood at Sl.No.21 in the combined seniority of high court judges on all-India basis.Justice Sanjiv Khanna stood at Sl.No.33 in the combined seniority of High Court Judges on all-India basis. His date of appointment as additional judge was June 24, 2005. He retires as the Supreme Court Judge on May 13, 2025.Now let us look at the seniority of those who were recommended on December 12, but dropped by the collegium later.Chief Justice of Delhi high court Rajendra Menon was appointed as additional judge on April 1, 2002. If he was appointed as judge of the Supreme Court, he would have retired on June 6, 2022. As chief justice of the Delhi high court, he is set to retire on June 6, 2019 (the age of superannuation for high court judges is 62, while it is 65 for Supreme Court judges).Also Read: The Judicial Collegium Is a Law Unto ItselfAmong the current incumbents of the Supreme Court, Justice D.Y. Chandrachud is set to take over as the CJI after Justice Uday Umesh Lalit on the latter’s retirement on November 8, 2022, Justice Menon’s chances of becoming the CJI were nil, if appointed to the Supreme Court in the current round.The Chief Justice of Rajasthan high court, Pradeep Nandrajog was appointed as additional judge on December 20, 2002 and therefore, is senior to both Justices Maheshwari and Khanna. But he would have retired as the judge of the Supreme Court, if appointed, on February 23, 2023 and as the Rajasthan high court chief justice, he would have to retire on February 23, 2020. Like Justice Menon, Justice Nandrajog too could have never made it as the CJI, if appointed to the Supreme Court, as he would have retired before Justice Chandrachud retires on November 10, 2024.The same is true of Justice Gita Mittal, who is the chief justice of Jammu and Kashmir high court. She was appointed as the additional judge on July 16, 2004, and is set to retire on December 8, 2020. She would have retired as the Supreme Court judge, if appointed, on December 8, 2023. She would also have missed the opportunity to become the CJI.Since she is senior to Justice Maheshwari by about two months, it could be said that her seniority was overlooked. But Justice Maheshwari has been the chief justice of Karnataka high court since February 24, 2016, whereas Justice Gita Mittal took over as the chief justice of Kashmir high court on August 11 last year and served as the acting CJ of Delhi high court from April 14, 2017 to August 10, 2018.Longest serving chief justice of high court and diversityIt was said, for example, that Justice K.M.Joseph was the longest serving chief justice of a high court, (having taken over in 2014), and therefore, preferred by the collegium over others who might have been senior to him, in terms of date of appointment as additional judges.Among the current Chief Justices of high courts, Chief Justice Rajendra Menon is the longest serving chief justice, having been appointed as the Chief Justice of Patna high court on March 15, 2017. He took over as the Chief Justice of Delhi high court on August 9 last year. As his home state is Madhya Pradesh, which is already represented by two judges in the Supreme Court (Justices Arun Mishra and Abhay Manohar Sapre), his appointment may not be favoured by the collegium, keeping in view the need for geographical diversity.There are at present nine high courts which are not represented in the Supreme Court. They are Jammu and Kashmir, Chattisgarh, Jharkhand, Manipur, Meghalaya, Odisha, Sikkim, Tripura and Uttarakhand. Eight high courts have only one representation each: Punjab and Haryana, Gujarat, Gauhati, Tamil Nadu, Patna, Himachal Pradesh, Calcutta and Kerala. Only Delhi and Bombay high courts have three each, in view of their size. Apart from Madhya Pradesh, Rajasthan, Andhra Pradesh, the Allahabad and Karnataka high courts too have two judges each to represent them in the Supreme Court.The Chief Justice of Telengana high court, Thottathil B. Radhakrishnan comes second, having been appointed as the CJ of Telengana and AP high court on March 18, 2017. The collegium has since recommended his transfer as the Chief Justice of Calcutta high court. He was appointed as additional judge on October 14, 2004 and is set to retire on April 28, 2021. If appointed to the Supreme Court, he would retire on April 28, 2024, and he too would not make it as the CJI.Justice Radhakrishnan’s home state is Kerala, which is represented by Justice K.M. Joseph in the Supreme Court. It is unlikely that he may find himself in the zone of consideration for the appointment to the Supreme Court. Chief Justice of Rajasthan high court, Pradeep Nandrajog comes third, having been appointed to the post on April 2, 2017.Justice Maheshwari, with the Rajasthan high court as his parent high court, seems to have been preferred by the collegium because he has been the longest serving Chief Justice of a high court, before his elevation. With Justice Ajay Rastogi (also hailing from Rajasthan high court) appointed recently to the Supreme Court, Justice Maheshwari is seen to complete the representation of Rajasthan.One wonders why the collegium felt shy of claiming that ensuring a successor to Justice D.Y. Chandrachud’s reign as CJI was the legitimate reason for supersession. Credit: Reuters/Anushree FadnavisFixing the CJI’s line of successionBringing Justice Nandrajog to the Supreme Court would have given Delhi four judges. Delaying Justice Khanna’s appointment, to accommodate Justice Nandrajog in this round might have made sense, as Justice A.K. Sikri, who also hails from Delhi, is set to retire on March 6. But then, the collegium members perhaps wanted to confirm a successor to Justice Chandrachud in 2024, so that he would have a reasonable tenure of at least six months as the CJI.Interestingly, none of the judges whom Justices Maheshwari and Khanna superseded had any chance of becoming the CJI, even if appointed to the Supreme Court in this round. India needs CJIs with reasonable tenures, and if the collegium makes its recommendations, aiming to find suitable successors as CJIs for the next ten years, it could offer a strong and cogent reason justify supersession of high court judges, and protect independence of judiciary.If Justice Khanna had to wait for his turn in terms of his seniority among the high court Judges, it is possible that he might have lost the opportunity to succeed Justice Chandrachud as the CJI with a tenure of at least six months. One wonders why the collegium felt shy of claiming this as a legitimate reason.In India’s judicial architecture, high courts, like the Supreme Court, are equally important and their chief justices must have sufficiently long tenure, before they are considered for elevation to the apex court. While their experience as the chief justices of high courts is valuable, they should not be appointed as the high court chief justices merely for a few months before their elevation to the apex court or transfer to another high court as a stop gap arrangement.Also Read: Amid Collegium Row, Centre Elevates Justices Sanjiv Khanna, Dinesh Maheshwari to SCThat would belittle the office of the chief justice of the high courts. The search for a would-be judge of a Supreme Court, therefore, must go beyond the pool of high court chief justices or puisne judges most of whom are on the verge of retirement, so that an appointee gets a reasonably long tenure of six or seven years and the possibility of succeeding as the CJI.Alternatively, there is merit in the proposal to bring the age of superannuation of Judges of the high courts and the Supreme court on par, in order to avoid the unhealthy competition among the high court chief justices to seek elevation to the Supreme Court.
