The Collegium decision to supersede three High Court judges in elevation to the Supreme Court has got mired in a major controversy, with former Chief Justice of India R M Lodha and some others from the judicial fraternity raising questions.
The Supreme Court Collegium on January 10 recommended the elevation of Justice Maheshwari, Chief Justice of Karnataka High Court, and Justice Khanna, a judge of Delhi High Court, as judges of the apex court.
Justice Lodha termed as "little disturbing" that junior judges were being recommended for elevation to the Supreme Court before their seniors.
"What I always feel is that the Collegium should act in a transparent manner, and reasons must be forthcoming why the decision was an upturn. There must be transparency," he told ANI.
"I have always believed that the Collegium works as an institution. It is an institutional body; it is not an individual's decision. If the consultation or communication between the Collegium was lacking, that could have been done. A junior judge was superseded to the Supreme Court, it surprises me," Justice Lodha added.
He said the Collegium is a matured body, comprising the CJI and four senior-most judges and that "every decision taken by the Collegium must reflect its maturity."
"The question is after Justice Nandrajog, there are two more judges, Justice Gita Mittal, the Chief Justice of Jammu and Kashmir High Court and Justice S Ravinder Bhatt. The Karnataka High Court Judge, who is from Rajasthan, was superseded six weeks ago, was not found to be, as per reports, deserving for being elevated to the Supreme Court," he said.
The top court is presently functioning with 26 judges as against the sanctioned strength of 31, leaving five clear vacancies.
Retired Delhi High Court Judge Justice Kailash Gambhir also questioned the Collegium's decision.
He said that in all 32 judges have been superseded across the country and that Chief Justice of India Ranjan Gogoi should "explain" this.
"(I) don't know what happened to the Collegium. They took a decision on December 12 and now post- vacation the decision was changed. It was an earth-shaking decision," Justice Gambhir said.
The retired Delhi High Court judge, who has also written to President Ram Nath Kovind to express his reservation to the Collegium's decision, said the January 10 recommendation was made by undermining seniority.
"Both judges are very meritorious. But it is a question of ignoring the seniority of judges. Why this fourth judge is picked up? These reasons are not understandable. Only Collegium will explain," he said.
The retired High Court judge was of the view that the decision taken by the Collegium will definitely send a wrong signal. "There should be more transparency," he noted.
"The Supreme Court judges, including Chief Justice Gogoi, had come out in the media last year (when they addressed an unprecedented press conference against the then Chief Justice of India Dipak Misra). At that time, it was about the selection of cases. Now it's a question of selecting judges, it's a fundamental question," Justice Gambhir said.
"Why pick a person who is at number 4 in the Delhi High Court? If you think number four is meritorious, then number 10 may be more meritorious," he said.
"There has to be institutional credibility in the issue. Justice Gogoi had said after becoming the CJI, I have some good plans. Is this his plan, to elevate number four to the Supreme Court? This CJI has to explain. Seniority and merits should be respected in the case," he added.
Gambhir's remarks came a day after he wrote to the President, terming the Collegium's decision as a "historical blunder" and pleading with him to ensure "independence and trust" in the judiciary by preventing the decision to materialise.
Bar Council Chairman M K Mishra said there was a "strong resentment" among several judges.
He said names of Justice Menon and Justice Nandrajog were recommended in December. "Now suddenly, the Collegium has taken a U-turn after 20-25 days," he added.
"Our delegation will go and meet the collegium to ask them to reconsider and recall this decision. If they don't do it, we'll go and sit on a dharna," Mishra said.
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