Controversy continues over Justice Khanna’s elevation

In the backdrop of the controversy over the appointment of Justice Sanjiv Khanna, a 1998 opinion by the Supreme Court may shed light on the questions raised by the episode. The objections against are not merely over seniority, but extends to questions about the Collegium dropping the names of two judges considered earlier and the reasons given for changing its decision. As Justice Khanna shared the Bench with the Chief Justice of India Ranjan Gogoi on Monday, a section of legal experts condemned the controversy as a “selective” outcry. They cited the recent example of the Collegium recommending Justice K.M. Joseph for appointment to the Supreme Court over many other judges senior to him. Why cannot the same happen to Justice Khanna, who was ranked 33 in the all-India high court judges’ seniority list, they asked. ‘Outstanding merit’ A nine-judge Bench in the ‘Special Reference Case’ of 1998 had ruled that “merit is the pre-dominant consideration for the purposes of appointment to the Supreme Court”. “Where there is outstanding merit, the possessor thereof deserves to be appointed regardless of the fact that he may not stand high in the all-India seniority list or in his own High Court,” the court had held in its opinion on the 1998 Presidential Reference on the intricacies of the Collegium system. However, objections voiced by the likes of former Chief Justices of India R.M. Lodha and K.G. Balakrishnan are not confined to supersession alone. The furore, in fact, extends to why the Collegium had dropped its December 12, 2018 proposal to recommend Delhi High Court Chief Justice Rajendra Menon and Rajasthan High Court Chief Justice Pradeep Nandrajog and, within days, chose Karnataka High Court Chief Justice Dinesh Maheshwari and Justice Khanna.

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