Dinesh Maheshwari, Sanjiv Khanna elevated as Supreme Court judges amid controversy

President Ram Nath Kovind has approved the elevation of justice Dinesh Maheshwari and justice Sanjiv Khanna as Supreme Court judges amid questions over the appointments by the legal fraternity.

The government on Wednesday appointed Karnataka High Court chief justice Dinesh Maheswari and Delhi High Court judge Sanjiv Khanna as judges Supreme Court, according to a notification by the Ministry of Law and Justice. 

The the two judges are likely to take oath on Friday after President Kovind signed off the Supreme Court collegium's recommendation issued on January 10. However, the recommendation of the country’s five top judges has created a flutter in the legal fraternity.

The controversy over the collegium's recommendation arose as the judges, especially Justice Khanna, is much lower in the judicial hierarchy. Many pointed out that their appointment will be unfair to the judges senior to them, including Justice Pradeep Nandrajog, who happened to be the collegium's initial choice.

According to reports, the Collegium - which comprises the top five judges of the Supreme Court - had decided to recommend Justice Pradeep Nandrajog, the Chief Justice of Rajasthan High Court, and Justice Rajendra Menon, the Chief Justice of Delhi High Court, for elevation to the top court.

But the decision was reversed on January 10 and it was decided instead to elevate Justice Maheshwari and Justice Sanjeev Khanna.

A section in the legal fraternity expressed reservations about the decision, with many saying the lack of transparency can erode people's faith in the judiciary.

Controversy over appointments

Former Chief Justice of India RM Lodha said the Collegium "should act in a transparent manner".  "A junior judge was superseded to the Supreme Court, it surprises me," he added.

ForAttorneyrney General Soli Sorabjee also admitted he was "upset" over the decision.

Pointing out that the constitution has made the judiciary "accountable to the public", the Bar Council of India said they could hold protests if the two judges are appointed.

"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," Bar Council chairman MK Mishra was quoted as saying by news agency ANI.

Justice SK Kaul, a sitting judge of the top court has already expressed his reservations in writing to Chief Justice Gogoi. 

Former judge of the Delhi High Court, Kailash Gambhir, has also written to the President, calling the out-of-turn elevation of the judges "appalling" and "outrageous".

Markandey Katju, former judge at the Supreme Court of India, alleged that 'it was CJI Gogoi who was adamant on these 2 names and the other Collegium members buckled down before him'. 

'This has sent a very bad signal to judges all over the country that they need not work since all which will matter for their career is the whims of the CJI,' he wrote in a post on Facebook.

Seniority not the only criteria

However, seniority is not the only basis for elevation of judges. While recommending the names of Justice Maheshwari and Justice Khanna, the Collegium took into consideration the combined seniority on an all-India basis of Chief Justices and senior puisne judges of High Courts, apart from their merit and integrity.

The top court is presently functioning with 26 judges as against the sanctioned strength of 31, leaving five clear vacancies.