Justices Dinesh Maheshwari and Sanjiv Khanna were on Friday sworn in as Supreme Court judges amid a raging controversy over the functioning of the Collegium which recommended their elevation by ignoring some senior judges of various high courts.
Both the judges were administered the oath of office by Chief Justice of India (CJI) Ranjan Gogoi during a ceremony held in court number 1 of the apex court.
Justice Sanjiv Khanna, who had earlier said that his elevation to the apex court has come as a surprise, on Friday shared the bench along with Justices S A Bobde and Deepak Gupta in Court no 2, which has the portrait of his uncle Justice H R Khanna who was superseded in the CJI race during Emergency after his minority judgement.
Justice H R Khanna had disagreed with the remaining four judges of the bench and ruled that fundamental rights cannot be suspended even during such periods like the Emergency.
Justice Sanjiv Khanna, son of late Justice D R Khanna of the Delhi High Court, had reminded at a farewell function about the controversy on his elevation in 2004 to the Delhi High Court which had come after some delay as his name "went up and down" before he was finally appointed as an additional judge.
The issue of ignoring judges senior to Justice Sanjiv Khanna was mentioned at the farewell function by the Delhi Bar Council chairman K C Mittal who said there was a feeling among the lawyers that other senior judges and the Chief Justice of Delhi High Court "should have been given their due".
"But destiny nobody can change," Mittal added.
With the appointment of Justices Maheshwari and Khanna, the total number of judges in the Supreme Court has risen to 28 against the sanctioned strength of 31.
Justice Maheshwari was the chief justice of the Karnataka High Court.
The appointment of both the judges has been marred by controversy as Justice Khanna superseded several judges senior to him in various high courts to become the apex court judge.
Justice Maheshwari made a comeback, six weeks after he was not considered for elevation and a judge junior to him, Justice Ajay Rastogi from their parent High Court of Rajasthan, was preferred over him.
Speaking on the controversy, former Chief Justice of India R M Lodha, had said the only remedy is that the Collegium in future considers the names which have been overlooked like it happened with Justice Dinesh Maheshwari, the Chief Justice of Karnataka High Court who was from Rajasthan.
"He was superseded six weeks back and his junior Justice Ajay Rastogi was brought to the Supreme Court and now within six weeks Justice Maheshwari is the most deserving by the Collegium. So those who have been overlooked can always be considered so there is no bar," Justice Lodha said.
Sources, who are in the know of Collegium system's functioning, said it was surprising as to why the decision of the Collegium meeting of December 12, 2018 was not made public and why no reason was cited for ignoring Justices Pradeep Nandrajog and Rajendra Menon for elevation.
The sources said Justices Nandrajog and Menon, Chief Justices of Rajasthan High Court and the Delhi High Court respectively, were in the zone of consideration for elevation.
But the January 10, 2019 decision of the Collegium has surprised both the Bar and the bench and that is why Justice S Kaul of the apex court circulated a note to the five-member Collegium consisting of the senior most judges of the Supreme Court suggesting that ignoring senior judges would send a wrong signal, they said.
The government had on Wednesday notified the appointment of justices Maheshwari and Khanna as judges of the apex court.
The five-member Supreme Court Collegium, comprising CJI Gogoi and justices A K Sikri, S A Bobde, N V Ramana and Arun Mishra, had on January 10 recommended the names of justices Maheshwari and Khanna for elevation as apex court judges.
The names of the chief justices of the Rajasthan and Delhi high courts, justices Pradeep Nandrajog and Rajendra Menon respectively, were considered by the collegium on December 12, 2018 for elevation, but the deliberation remained inconclusive and one of the members of the collegium, Justice M B Lokur, retired on December 30, 2018.
His place in the collegium was taken by Justice Arun Mishra.
The new collegium had, on January 10, ignored the prospect of elevation of justices Nandrajog and Menon as apex court judges.
The Bar Council of India (BCI) had, on Wednesday, protested the Supreme Court Collegium's recommendation to elevate Justice Khanna by superseding several other judges and termed the decision as "whimsical and arbitrary".
Before the BCI made a statement protesting the collegium's decision, Justice Sanjay Kishan Kaul of the Supreme Court had written the note to the CJI and other members of the collegium against ignoring the seniority of justices Nandrajog and Menon.
The sources said Justice Kaul was of the view that a wrong signal would go out if the two chief justices, who were above Justice Khanna in the seniority list, were not elevated to the apex court.