Now, in a tearing hurry to elevate ‘junior’ judges

The elevation to the Supreme Court of Justice Sanjeev Khanna of the Delhi high court who superceded 32 judges and former Karnataka chief justice Dinesh Maheshwari, accused of blocking a district judge’s elevation to the high court at the behest of the BJP government, has kicked up a row. The Narendra Modi government cleared both files in record time although it sat on the file of Justice K M Joseph, who struck down President’s rule in Uttarakhand, denying him seniority in the apex court.
Justice Sanjeev Khanna, who has been elevated, is the son of a judge and nephew of the legendary Justice H R Khanna who was superceded by Indira Gandhi because he dissented in the notorious habeas corpus case of 1975 which stated the right to life was abrogated during the Emergency.

Indira Gandhi rewarded Justices M H Beg, A N Ray and Y V Chandrachud by making them chief justices of India. So, one year after the four rebel judges held an impromptu press conference on January 12, 2018, and 25 years after it was devised, nothing has changed within the collegium. The Bar Council of India (BCI) said reversal of the collegium’s earlier resolution recommending the elevation of chief justice of the Rajasthan high court Pradeep Nandrajog and chief justice of the Delhi high court Rajendra Menon was “whimsical and arbitrary.”

The collegium’s decision of January 10, 2019, will humiliate and demoralise Nandrajog and Menon, other senior judges and chief justices of high courts, the BCI said. The senior most judge next to the CJI, Justice A K Sikri, also kicked up a row this week by withdrawing his consent to be nominated by the Modi government for the London-based Commonwealth Secretariat Arbitral Tribunal after his retirement on March 6. Justice Sikri said he felt this would be seen as a quid pro quo for his decisive vote to remove CBI chief Alok Verma, thereby supporting Narendra Modi amidst allegations that Verma wanted to probe the Rafale deal. Sikri has taken a correct stand but Maheshwari’s elevation has sent wrong signals about how the collegium functions.

Three of the four rebel judges, who spoke to the media on January 12, 2018, have retired while Ranjan Gogoi is, now, the CJI. The present collegium which met in December 2018 initially decided to elevate Rajasthan high court chief justice Pradeep Nandrajog, and Delhi high court chief justice Rajendra Menon. Strangely, on January 10, CJI Ranjan Gogoi with his collegium comprising Justices A K Sikri, S A Bobde, N V Ramana and Arun Mishra (who replaced Justice Madan Lokur) suddenly substituted Khanna and Maheswari by Nandrajog and Menon.

In January 2018, the present CJI Ranjan Gogoi alleged former CJI Dipak Misra allocated the hearing of a PIL on Judge Loya’s mysterious death to Justice Arun Mishra keeping in mind a pre-determined outcome. Mishra, now, forms part of the present collegium. Justice N V Ramanna is the only first-generation lawyer among the entire collegium but Justice Jasti Chelameswar accused him of being “close” to Andhra chief minister N Chandrababu Naidu. The remaining collegium members are sons of well-known families, according to advocate Mathews Nedumpara, president of the National Lawyers Campaign for Judicial Accountability and Reforms.

Former Chief Justice of India R M Lodha pointed out the collegium earlier found chief justice Dinesh Maheshwari unsuitable for elevation but reversed their stand after six weeks. Even Justice Chelameswar asserted nothing had changed. “This is exactly why I refused to attend the collegium meetings in 2016… I was told by legal luminaries at that time that I should resign and then speak. Now, I have retired, so why should I not speak?” For those who came in late, the collegium system was devised in 1993 to preserve judicial freedom by virtually amending the Constitution which is the sole prerogative of Parliament.

This made the opinion of the chief justice of India binding on the government. But some of those selected as judges were disasters which was why Parliament amended the Constitution for the 99th time in 2014. It was ratified by 16 state assemblies but struck down by the Supreme Court in October 2015 after it was ratified by the then President Pranab Mukherjee proving the judiciary is accountable only to itself.

In his blog, Justice Markandey Katju gave details of how a notorious district judge of Madras (now Chennai) was elevated and confirmed as a high court judge despite the Intelligence Bureau confirming he was corrupt. The then CJI K G Balakrishnan confirmed him as a high court judge and transferred him after the then prime minister Manmohan Singh was told his government would fall if the corrupt judge was not confirmed. A powerful political leader in Tamil Nadu wanted the corrupt judge to be confirmed—never mind the collegium. In September 2010, an affidavit signed by former law minister Shanti Bhushan declared that “eight out of 16 chief justices of India were definitely corrupt while six others were definitely honest and no definite opinion could be made about two others.”

He said his sources were former chief justices of India who headed the collegia. Former Delhi high court chief justice Ajit Shah who was himself not taken to the Supreme Court by the late CJI S H Kapadia said the collegium system was “opaque, secretive and unaccountable.” After Justice Chelameswar boycotted collegium meetings in 2018 because they were opaque, their resolutions were uploaded on the official website. But these resolutions read like a cut-and-paste job with only the names of incumbent judges being changed. So, we must now accept the infallibility of five wise Supreme Court judges who form the collegium is here to stay.

Their decisions as to which judges will succeed them cannot be challenged despite several historical blunders being made such as Justice Gyan Sudha Misra who was always late to reach court and declared her daughters on the Supreme Court website as liabilities to be married off. Strangely, she too, has opposed the elevation of Sanjeev Khanna and Dinesh Maheshwari, as has former CJI K G Balakrishnan, who retired amidst allegations
of corruption.

Olav Albuquerque holds a PhD in law and is  a journalist-cum-advocate of the Bombay high court.

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