Unlike in the case of Justice K.M. Joseph, the government did not have a problem approving the Collegium recommendation to appoint Delhi High Court judge, Justice Sanjiv Khanna, as a Supreme Court judge despite his clear lack of seniority.

In fact, the government notification comes within a week of the Collegium file reaching the Union Ministry of Law and Justice. The Collegium recommendation itself is dated January 10. The appointment is dated January 16.

With this, Justice Khanna has superseded many to the Supreme Court, including three of his accomplished seniors from their parent Delhi High Court. They are Justices Gita Mittal, Pradeep Nandrajog and Ravindra Bhat.

In a curious twist of fate, a retired judge pointed how Justice H.R. Khanna, who is Justice Sanjiv Khanna’s uncle and author of the historic dissent in the ADM Jabhalpur case, resigned as apex court judge in 1977 when he was superseded by the government as Chief Justice of India. Justice Sanjiv Khanna, in turn, may become the CJI after Justice D.Y. Chandrachud retires in 2024.

With Justice Khanna’s appointment coming through, the Collegium and the government have now confirmed that seniority is not the sole criterion for appointment to the Supreme Court. Justice Sanjiv Khanna was number 33 in the all-India high court judges' seniority list.

One -year delay

The seniority question had delayed Justice Joseph’s elevation for nearly a year. During this time, it unilaterally bifurcated the Collegium file and appointed Justice Indu Malhotra to supersede Justice Joseph to the apex court.

Before the Collegium recommended him to the apex court, Justice Joseph was known for his April 2016 judgment quashing President’s rule in Uttarakhand when he was the Chief Justice of that State's high court.

It was only after then Collegium judges like Justices J. Chelameswar and Kurian Joseph raised their voices that the government communicated its objection about Justice Joseph. The government argued that Justice Joseph was too junior, ranked 42 in the seniority list, for Supreme Court judgeship.

The Collegium had to finally reiterate its recommendation before the government notified the appointment of Justice Joseph to the apex court in August 2018.

The Collegium said it had considered the entire seniority list of all high court judges across the country. The two judges were chosen over others after taking into consideration their “merit and integrity”.

By notifying Justice Khanna’s appointment, the Centre seems to have agreed to the Collegium’s conclusion that the judge is more suitable for the apex court than the 32 high court judges senior to him.