Wednesday, October 20, 2021
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Vacancy woes in the Supreme Court

The collegium has the extraordinary opportunity of recommending 13 names for judges. But before that, it needs to build consensus and consider deserving candidates to reflect the composite culture of India.

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By Lokendra Malik

On April 24, Chief Justice of India (CJI) NV Ramana assumed the highest judicial office in the country based on the seniority principle. As a well-established convention, the president of India appoints the senior-most judge of the Supreme Court to the office of CJI ever since the commencement of the Constitution.

However, on two occasions—in 1973 and 1977—this convention was ignored and junior judges were appointed as CJIs for political reasons. In 1993, in the Second Judges’ case, the Supreme Court also approved the seniority convention. Now it will be very difficult for the government to breach this convention.

CJI Ramana’s predecessor, Justice SA Bobde retired on April 23, 2021, after completing a tenure of over 17 months. Surprisingly, during his time in the apex court, he could not make any visible contribution, particularly in judicial appointments. Unfortunately, as a leader of the Supreme Court collegium, he could not build a consensus there to appoint a judge to the Court. However, he was successful in making dozens of recommendations to appoint the judges in different High Courts.

In addition to this, he delivered a judgment in M/S PLR Projects Limited vs Mahanadi Coalfields Ltd. that rightly fixed the timeline for the government to appoint judges in High Courts. Now the ball is in CJI Ramana’s court. Let us see how he handles the collegium crisis. 

Notably, the last time judges were appointed to the apex court was in 2019. They were Justices Krishna Murari, S Ravindra Bhat, V Ramasubramanian and Hrishikesh Roy. The earliest vacancy of a Supreme Court judge was in November that year after Chief Justice Ranjan Gogoi’s retirement. It still hasn’t been filled up.

This is a matter of grave concern and the collegium cannot ignore it considering the fact that many cases are pending in the Supreme Court. It also sends a wrong message to the people about the collegium’s functioning and decision-making process. Admittedly, during the tenure of Chief Justice Bobde he had called several meetings of the collegium to discuss appointments to the Supreme Court, but he failed to convince his colleagues.

All such meetings ended without passing any resolution because of the lack of consensus among the collegium members regarding the names of some judges and chief justices of High Courts due to various reasons such as seniority, geographical issues and representation of High Courts. As per media reports, some collegium members were not in favour of ignoring the seniority norms in judges’ selection. One senior collegium member also rightly took a stand to protect the interests of minorities in judicial appointments in the Court.

It is pertinent to mention that proportionate representation from different High Courts and seniority carry weight during the selection process of judges. But there are precedents where junior High Court judges were elevated to the Supreme Court bypassing seniors and even some chief justices of High Courts. Media reports also indicate that a senior collegium member had raised his voice to consider those overlooked. As a result of this, a deadlock prevailed in the collegium and vacancies piled up. Thus, something must be done urgently to fill up the eight vacancies of judges in the Supreme Court. 

The sanctioned strength of judges in the apex court is 34. Two judges, namely Justices Rohinton Nariman and Naveen Sinha, will retire by the end of the year, and three by the end of August 2022. Given this development, the CJI Ramana led collegium has the extraordinary opportunity of recommending the names of around 13 Supreme Court judges till August 2022. Very few chief justices get this kind of opportunity. Let us hope CJI Ramana and his collegium colleagues grab this opportunity.

But, first of all, they need to recharge the collegium’s functioning for building a consensus to appoint judges in the top court. Thankfully, the three-member Supreme Court collegium has made dozens of resolutions for appointing the High Court judges under CJI Ramana’s leadership, and the government has cleared them promptly. However, no recommendation to appoint a Supreme Court judge has yet been made by the five-member collegium. Given the increasing number of vacancies in the Court, the collegium should initiate the appointment process of judges and consider deserving candidates from different faiths, castes, communities, genders and tribes.

It is believed that the Supreme Court of India is considered the most powerful court in the world. But its strength lies in the public trust and diversity that makes it the “Supreme Court for Indians”, as Professor Upendra Baxi stated in his academic writings.

As the highest court of the largest democracy, the Supreme Court must reflect the composite culture of the nation and become the Court for all Indians who knock on its doors for justice. Only a few privileged communities and castes should not dominate our constitutional courts.

Let it represent the collective soul of the nation.

As of now, the Supreme Court has only one woman judge and one Muslim judge. This is disturbing news for all secular citizens. The judge-makers of our country must give a fair representation to women and minorities in the Courts so that all sections of society can repose trust in the Indian judicial system. I think there should always be at least 4-5 women and minority judges in the apex court. It will strengthen people’s faith in the judiciary.

Besides the apex court, there are over 400 vacancies of judges in different High Courts too. Some are functioning without permanent chief justices for months. The collegium should also take note of this issue and meet early to discuss all these issues.

Also Read: Delhi High Court seeks Centre’s response on transgender woman plea for new passport with changed name, gender

While disagreements over individual names will always be there, care must be taken to see that the dignity, credibility and integrity of the collegium does not suffer. We, the People of India, are confident that Your Lordships will not disappoint us.

I will conclude by the scholastic words of eminent legal philosopher Professor Upendra Baxi: “The CJI must at all times carry his/her colleagues. The brethren must respect the high constitutional office of the CJI but when they believe the CJI is impervious to a fraternal dialogue, a difficult situation arises. Ideally, justices should not go public, but if after due consideration the voice of conscience compels them to do so, the matter should be amicably settled by the CJI with the help of the full court. Collective judicial solidarity is crucial for maintaining a constitutional republic.”

—The writer is Advocate, Supreme Court of India

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