I write this letter to your Excellency with a heavy heart.
On the evening of 11th January, 2019 there was breaking news on all the news channels that the Collegium of the Hon’ble Supreme Court of India had recommended the elevation of Hon’ble Justice Dinesh Maheshwari, Chief Justice, Karnataka High Court and Hon’ble Justice Sanjeev Khanna, Judge, Delhi High Court to the Hon’ble Supreme Court of India. At first, I disbelieved the said piece of news, especially concerning the elevation of Hon’ble Justice Sanjeev Khanna not only superseding three Judges senior to him from Delhi High Court, who are also of high merit and impeccable integrity but also superseding more than 30 Judges in All India Seniority. However, to verify the veracity of the news, I kept on changing the channels and found the news to be correct, questioning my own incredulity. On legal news websites there was a detailed coverage of this event, including the decision of collegium placed on the website of Supreme Court of India. To reiterate what you may be aware, it states that the collegium has discussed names of Chief Justices as well as senior puisne Judges of the High Courts, eligible for elevation to the Supreme Court and is of the considered view that at present the said two persons are more deserving and suitable in all respects than other Chief Justices and Senior puisne Judges of High Courts for being appointed as Judges of the Supreme Court of India. The decision of the collegium also refers to certain decisions taken by it on 12th December, 2018 but since the required consultation could not be undertaken as the winter vacation of the court intervened and by the time the Court reopened, the composition of the collegium underwent a change.
To be honest, the said news breaking all traditions has sent shockwaves to the entire legal and judicial fraternity. This is appalling and outrageous that such an earth shattering decision has been taken to supersede as many as 32 Judges which include many Chief Justices, casting aspersions on their intellect, merit and integrity. We all know that Hon’ble Justice Sanjeev Khanna, son of late Honb’ble Justice DR Khanna, also happens to be the nephew of the highly respected man in the legal world, late Hon’ble Justice HR Khanna. The talk in the legal corridors is that the elevation of Justice Khanna is with a view to pay respect to the legacy left by his great uncle and is a tribute to his great ideals, principles, judicial philosophy and most of all, to the courageous stand taken by him in the Habeas Corpus case. We all know that Justice Khanna stood as a rock in his known dissenting and minority voice and refused to bow down to the majority voice of four senior most Judges who went on to compromise the life and liberty of citizens, permitting unrestricted powers of the government for detention during emergency. It is said that Justice Khanna knew that when he signed his dissenting judgment that he was signing away his future Chief Justiceship. As a fait accompli, when the time came, Justice Khanna was superseded and in his place Justice MH Beg was appointed as Chief Justice of India. Justice Khanna resigned so as to give a slap on the face of all those votary of playing with the independence of the judiciary and to respect the seniority of Judges. Many term the supersession of Justice HR Khanna as a black day in the history of Indian Judiciary.
In December, 1978 his full size portrait was unveiled in the Hon’ble Supreme Court in Court No. 2 and to this day, nobody else has had the singular honour of having their portrait put up in the Supreme Court during their lifetime.
It is not far long ago that Hon’ble Justice (Ranjan) Gogoi was one of the four Judges of the Supreme Court who held an unprecedented press conference to flag some of the pressing problems they faced with the then Chief Justice of India. While addressing the media, it was said that “unless this institution is preserved, democracy will not survive in this Country. It was also said that “democracy will not survive without free judiciary”.
I humbly urge your Excellency to kindly ponder over as the head of our largest democracy in the world with a robust judiciary and having remained a part of the legal fraternity, and see yourself that the way the present collegium of five eminent senior Judges have superseded almost 32 Judges, how will the democracy and independence of judiciary in the country survive. It cannot be forgotten, that it is just one-and-a-half month back the then collegium members of Supreme Court had superseded Hon’ble Justice Dinesh Maheshwari and now out of the blue, he becomes more deserving and suitable within such a short gap.
I write to you as having been a proud member of this vibrant judiciary, which has withstood the tests on its credibility every now and then, but I am afraid may not survive this time. It will be another black day when there will be supersession of 32 Judges who are senior to Justice Sanjeev Khanna and many of them may be no less meritorious and men of integrity than him. The legacy that we all are so proud of and which the collegium, so scrupulously wants to preserve will become nothing but an unfortunate irony.
In the light of the aforesaid, I humbly pray that the credibility and independence of the judiciary be preserved and let another historical blunder be not committed.
With highest personal regards,
Justice Kailash Gambhir (Retd.)