It is to be seen if the government will raise the same objection of lack of seniority to reject the Collegium recommendation of Delhi High Court judge Justice Sanjiv Khanna for appointment to the Supreme Court as it had once done in the case of Justice K.M. Joseph.
By recommending Justice Khanna, the Collegium has overlooked his seniors. It has reiterated the principle that seniority is not the sole criterion for appointment to the Supreme Court. This was the Collegium’s logic in the case of Justice Joseph.
Justice Khanna is ranked 33 in the combined seniority of High Court Judges on all-India basis. Justice Joseph was number 42 in the list. The Collegium had to reiterate its recommendation before the government finally approved the appointment of Justice Joseph to the apex court.
For many, the Collegium’s unanimous resolution on January 10, 2019 to recommend Karnataka High Court Chief Justice Dinesh Maheshwari and Justice Khanna came as a surprise.
The decision caught many unawares as it had been reported that the Collegium, in a December 12, 2018 meeting, already decided to get Chief Justice of Rajasthan High Court Pradeep Nandrajog and Delhi High Court Chief Justice Rajendra Menon to the Supreme Court.
On January 10, the Collegium itself acknowledged that “certain decisions” were indeed taken on December 12. But the court’s winter break and a change in the composition of the Collegium, following the retirement of Justice Madan Lokur, had interfered with any “required consultation” on these decisions.
It said “extensive deliberations” were held on January 5 and 6 by the newly constituted Collegium. The new Collegium, with Justice Arun Mishra replacing Justice Lokur, had “deemed it appropriate to have a fresh look at the matter and also to consider the proposals in the light of the additional material that became available”.
The Collegium records that it found Justices Maheshwari and Khanna “more deserving and suitable in all respects than other Chief Justices and senior puisne judges of the High Courts”.
It said Justices Maheshwari and Khanna were zeroed in on after combing through the entire seniority list of high court judges across the country. The two judges were chosen over others after taking into consideration their “merit and integrity”.
This is how the Collegium has explained its change of mind between December 12 and January 10.
It is now up to the Union Law Ministry to either agree with the Collegium recommendation or object to Justice Khanna’s relative juniority, as it did in Justice Joseph’s case.
In Justice Joseph’s case, the Collegium had backed him, challenging the government to show at least one instance of adverse remark against the judge.