The legal correspondents of almost every leading journal of India had to ink-up their styluses and fix-up their mikes earlier this January, so as to create a controversial news out of a recommendation of the Supreme Court collegium. On 11th January, Hon’ble Mr Justice Dinesh Maheshwari and Hon’ble Mr. Justice Sanjiv Khanna were recommended to be elevated to adorn the judicial robe at the Apex Court the nation. The controversy was chalked-out that while Justice Maheshwari has already been superseded by his erstwhile brother judge at Rajasthan H.C. Justice Ajay Rastogi; Justice Khanna stands at 33rd rank in the All-India High Court judges’ seniority list. The whole of the bickering was canvassed with a patronage of anything but the judicial precedents and the logic behind appointments.
After S.P. Gupta V. Union of India (1981), Supreme Court Advocate on-Record Association V. Union of India (1993) and the NJAC judgement (2015), the current position of appointment in judiciary is through the recommendation of the collegium. The Supreme Court collegium comprises of Hon’ble the Chief Justice of India and the following 4 senior-most judges of the Supreme Court. Those High Court judges who have substantially contributed towards law and justice and who, according to the collegium, are most competent to adorn the office of a SC judge are recommended for the elevation. Though it is generally the senior-most judge of a High Court who is recommended for elevation, but the same is neither a rule nor free from exceptions.
There are innumerable examples where ‘not-the-senior-most’ judge of a High Court has been elevated to the Supreme Court. Even if we relent to open the archival facts of appointment to the SC, a very recent scenario of elevation of Justice K.M. Joseph still stands fresh in the lobbies of the judicial offices. Justice Joseph, the then Chief Justice of Uttarakhand High Court, was on 42nd slot in the seniority list of All India High Court Judges. The Supreme Court collegium, on 26th April 2018, recommended the name of Justice Joseph for the Supreme Court Judgeship. The Law and Justice Ministry of the Union of India sent back the recommendation to the collegium for re-consideration by citing the fact that 41 High Court Judges stand senior to Justice Joseph. The collegium re-iterated its recommendation for elevation by stating “After careful consideration, the collegium did not find anything adverse regarding suitability of Joseph J. in the letters from the Law Minister.” Hence, Justice K.M. Joseph was administered the oath of office in the Supreme Court of India on 7th August 2018. In the recent issue of elevation of Maheshwari and Khanna, JJ. , the former Supreme Court judge Justice Chelameswar wrote a letter to the CJI and registered his protest in appointment of these 2 judges by citing the reasons of seniority. Same Mr. Justice Chelameswar, who was a member of the collegium which recommended Justice K.M. Joseph, had refuted the apprehension of the Ministry of Law and Justice by saying “He (Joseph, J.) is the most suitable judge for elevation to the Supreme Court. By not elevating a highly competent judge like Justice Joseph, the collegium was setting an unhealthy precedent”. Should a common law-man infer, after observing this contrast, that precedent as a source of law is binding on the judges only when it suits them the most?
The second contention which finds its genesis from the seniority issue is the fact that 32 other High Court judges had more judicial experience than Justice Khanna, hence they shouldn’t be superseded. Experience as a High Court judge has never been a criteria to appoint a person as a Supreme Court Judge. The collegium may recommend the elevation of a person having a distinguished practice of law, directly form the Bar itself. The current Supreme Court Judges’ Lounge has atleast 3 judges (Justices Rohinton Fali Nariman, Uday Umesh Lalit and Indu Malhotra) who sat on the bench directly in the Supreme Court, hence having no experience at all as a High Court Judge.
Thirdly, what is it that makes a person competent enough to be a Supreme Court Judge? Certainly the criteria includes dedication for the cause of justice, integrity and honesty. Having worked with HMJ Sanjiv Khanna for a period of time, I can say it with a high degree of confidence and certainty that this man possesses these all. One of the most impeccable judges at High Court of Delhi, Khanna, J. was the most workaholic judge too. The word ‘most’ must not be used unless the level of surety is beyond any probability of suspicion and objection, and the same has been kept in mind while using the coinage. While the High Court went on vacation from 15th December 2018, it was justice Khanna who worked in his judicial chamber for almost each day during the vacations. Be it the Christmas day of the new year’s day, one would find Justice Khanna, his LR and interns and his staff working in the Delhi High Court, from 10 am to much after sun-set. Justice Khanna is the person who was much happy when there was a news that his brother judge Justice Pradeep Nandarajog was to be elevated to SC and Justice S. Ravindra Bhatt would be the CJ of Rajasthan High Court.
Having witnessed Khanna, J. from the time when there was not even a crackling of sound which said that justice Khanna would be elevated soon to the SC, to the time when he took the oath as a SC judge and became the 5th in line to be the Chief Justice of India, this man showed not a single sign of superiority or arrogance. Always ready to teach about the law, discuss on the professional grounds and learn the new aspects, he was one of the few judges at the HC whose interns and LRs would sit, all the time, with him in his chamber itself. A hard-task-master justice Khanna led the work from front. If interns and staff were supposed to report at 10 am, the judge was already in the chamber from 9 am. The main building of the High Court is locked at 8 pm, but the key-man used to wait outside our chamber because often the staff of Khanna, J. used be the last lot of people to leave from the High Court building.
Even on 12th January 2019, hours after news of the collegium recommendation, all that occupied his mind was his pending reserved judgements. He worked day in and day out to write those judgements. It became common to observe one draft saved at 3:30 am another at 4:30 am and so on. Though the staff was happy throughout, the judge had a touch of despair for he was made to supersede 3 of his seniors from Delhi high Court. On his last day too, when a brother judge congratulated him, he said with humility “it’s a moment of salt and sugar for me”. Till the time of his farewell, he was amazed and overwhelmed by the fact of his elevation for none saw it coming that soon.
The man who followed the path, as he mentioned in his speech, of middle-way. Who grew in the cradle of the Bar and later of bench. Who revered his work like anything. Whose I-ness was unaffected by the robes of judgeship is now a well-deserved judge of the Supreme court of India and shall take over the highest judicial office of India; the Chief justice of India from November 2024 to May 2025. The elevation of Justice Khanna to the Supreme Court has echoed a seal on the maxim that it is the hard-work that supersedes seniority.
The author was an intern with Hon’ble Mr. Justice Sanjiv Khanna when the latter was a judge of High of Delhi