January 16, 2019:

Supreme Court Collegium is said to have changed its earlier decision relying on fresh material received against their previous Two choice of Judges for elevation to SC.

The abrupt revocation of the Supreme Court collegium’s decision to recommend the appointment of Rajasthan & Delhi HC chief justices Pradeep Nandrajog & Rajendra Menon to the SC & its substitution with a recommendation in favour of Karnataka CJ Dinesh Maheswhwari & Delhi HC’s Justice Sanjeev Khanna has sparked rumblings among judges of the country’s top court.

Many SC judges are anguished by the sudden change by the CJI Ranjan Gogoi-led fivemember collegium & are discussing ways to protect “institutional decisions”. They favour continuity in the decision-making process & would like to quell any impression that important calls taken by the body are influenced by the personal preferences of its members.

Sources said one SC judge, Sanjay Kaul, has already sent his written objection against sidelining of Nandrajog. Kaul, in his opinion to the collegium, said Nandrajog was the seniormost among the judges in the zone of consideration & a wrong signal would go out if he was passed over. “He is eminently suitable to be appointed to the SC,” sources quoted Kaul as having written.

Kaul clarified that while he had nothing against Khanna, the latter could wait for his turn to be elevated.

TOI had reported on Saturday that the SC collegium had recommended the appointment of Maheshwari & Khanna as SC judges.

On December 12, the collegium, comprising Gogoi & Justices Madan B Lokur, A K Sikri, S A Bobde & N V Ramana, met & decided to recommend the names of Nandrajog & Menon for appointment as SC judges. It was signed by the five judges but the CJI got upset when he found that the decision had been leaked to the media before it could be sent to the President, & sought reconsideration of the choices at the next meeting of the collegium on January 5 & 6.

SC explains the need for a fresh look at picks.

When the collegium met on January 5 & 6 after the winter break, Lokur had retired & Justice Arun Mishra had come into the panel. In the meeting, a judgment of a Delhi HC bench headed by Nandrajog in ‘F Hoffmann-La Roche Ltd vs Cipla Ltd’, in which 35 paragraphs were lifted verbatim from a 2013 article, was brought to the members’ notice.

The bench of Justices Nandrajog and Mukta Gupta had later admitted to the mistake, saying a law clerk incorporated those paragraphs & apologised to the authors of the 2013 article for copying & expunged all 35 paragraphs from the order. This fact appears to have weighed on the minds of the collegium members when they met on January 5-6 & decided to change their earlier decision.

Unhappiness over the sudden reversal of the collegium’s decision on Nandrajog is particularly acute among lawyers & former judges of Delhi HC as it happens to be his parent court.

While SC judges have no quarrel with Khanna’s appointment given the unanimity among them about his calibre, they are riled by the abrupt change in the collegium’s decision.

The controversy got fuel as lawyers claimed that Lokur, after retirement, told several persons in different gatherings that the decision recommending Nandrajog & Menon was signed by all five members of the collegium on December 12.

SC put out an explanation for the change on its website, “The then-collegium on December 12, 2018, took certain decisions. However, the required consultation could not be undertaken & completed as the winter vacation of the court intervened. By the time the court re-opened, the composition of the collegium underwent a change (Lokur had retired & Mishra inducted).

After extensive deliberations on January 5 & 6, the newly constituted collegium deemed it appropriate to have a fresh look & also to consider the proposals in the light of the additional material that became available.”

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