Judging this snakes and ladders

The recommendations of the Supreme Court collegium for elevation of the chief justice of the Karnataka high court, Justice Dinesh Maheshwari, and Delhi high court’s Justice Sanjiv Khanna to the Supreme Court have become controversial. The collegium’s decisions call for a convincing explanation which, going by its past functioning, may not be forthcoming. It made the recommendations on January 10. The judges have been sworn in after the government quickly accepted the recommendations. The collegium’s decisions have been criticised as wrong and improper because it revoked its earlier decision of December 12 to recommend the chief justices of Rajasthan and Delhi high courts, Justices Pradeep Nandrajog and Rajendra Menon, for elevation. The collegium said it was deemed “appropriate’’ to consider the proposals “in the light of the additional material that became available’’. It has not explained what the fresh material was.

Between December and January, one member of the collegium, Justice Madan B Lokur, retired, and Justice Arun Mishra joined it. But the collegium is a continuous entity and a change in composition should not affect recommendations it has already made. The explanation that the premature leak of the two names that figured in the December meeting led to the revocation is not convincing. Justice Khanna ranked number 33 on the combined seniority list of high court judges and Justice Maheshwari stood at 21. Seniority alone is not the criterion for elevation to the Supreme Court, but the government has made an issue of it in the past. This time, it had no reservations. It should be noted that Justice Maheshwari had been superseded in November last year and a judge junior to him was elevated. But within a short time, the collegium found him to be “more suitable and deserving in all respects’’ than all other judges for elevation. It should also be noted that Justice Maheshwari was criticised last year by the then second-most senior judge of the Supreme Court and a member of the collegium, Justice Chelameshwar, as being “more than willing to do the executive’s bidding behind our back’’. In the case of Justice Khanna, there are two chief justices who are senior to him.

The decision of the collegium has been criticised by the Bar Council of India, a sitting judge of the Supreme Court, Justice Sanjay Kishan Kaul, two former CJIs and others. The collegium system, created by the 1993 Second Judges case, has all along lacked transparency and credibility. It is ironic that its decisions are again being questioned when Justice Ranjan Gogoi, who had in public questioned the functioning of the Supreme Court on these grounds last year, is the chief justice now.