Friday, December 8, 2023

Full Strength, Finally

With the appointment of two more judges, the apex court has achieved its full strength of 34 judges. But seven more judges are scheduled to retire this year.

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The Supreme Court has regained its sanctioned strength of 34 judges with the appointment of Justices Sudhanshu Dhulia and Jamshed Burjor Pardiwala on May 9 as judges.

 The Union Law Ministry on May 7 had announced the appointments of Gauhati High Court Chief Justice Sudhanshu Dhulia and Justice Jamshed B Pardiwala of the Gujarat High Court as judges of the Supreme Court in separate notifications. On May 5, the Collegium headed by Chief Justice of India (CJI) NV Ramana had recommended their names. With the retirement of Justice R Subhash Reddy on January 4 this year, the total strength of judges in the top court had come down to 32.

Justice Dhulia, born on August 10, 1960, hails from Madanpur, a remote village in Pauri Garhwal district of Uttarakhand, and joined the Bar at the Allahabad High Court in 1986. A second-generation legal professional, Justice Dhulia’s younger brother Tigmanshu Dhulia is a national award-winning film director. He had his early education in Dehradun and Allahabad and is an alumni of Sainik School, Lucknow. He did his graduation and law from the University of Allahabad. He was designated as Senior Advocate in 2004 and elevated as a judge of the Uttarakhand High Court in November 2008. In January 2021, he became the chief justice of the High Court of Assam, Mizoram, Nagaland and Arunachal Pradesh. He will have a tenure of over three years.

Justice Pardiwala, born on August 12, 1965, started practising in the High Court of Gujarat in 1990. He did his schooling in St Joseph Convent in his home town Valsad (south Gujarat). He graduated from the JP Arts College, Valsad, and secured a law degree from KM Mulji Law College, Valsad, in 1988. He was elected as a member of the Bar Council of Gujarat in 1994. He was appointed Standing Counsel for the High Court of Gujarat in 2002 and held the office till the date of his elevation to the bench on February 17, 2011. He is the fourth judge from the Parsi community to join the apex court and the first High Court judge from the minority community to be elevated in the last five years after Justice S Abdul Nazeer.

The top court will have one vacancy every month till November, with seven judges scheduled to retire this year.

Justice Vineet Saran retired on May 10, and Justice L Nageswara Rao will retire in June, AM Khanwilkar in July and incumbent CJI NV Ramana retiring on August 26. Justice Indira Banerjee is scheduled to retire in September, followed by Justice Hemant Gupta in October. Justice UU Lalit will be at the helm of affairs for less than two-and-a-half months before he demits office on November 8.

The Supreme Court Collegium, comprising CJI Ramana and Justices Lalit, Khanwilkar, DY Chandrachud and L Nageswara Rao had recommended nine names for elevation to the Supreme Court on August 19, 2021.

On August 31, nine judges of the Supreme Court were sworn in by the CJI Ramana. The new judges include four High Court Chief Justices—Justice Vikram Nath (Gujarat), Justice AS Oka (Karnataka), Justice Hima Kohli (Telangana) and Justice JK Maheshwari (Sikkim). Four High Court judges were also appointed—Justice BV Nagarathna (Karnataka), Justice MM Sundresh (Madras), Justice CT Ravikumar (Kerala) and Justice Bela M Trivedi (Gujarat), and Senior Advocate PS Narasimha.

Due to the stalemate with the government, the Collegium had failed to recommend any names for appointment of judges to the Supreme Court after August 28, 2019, when it had made the last recommendations.

CJI Ramana on August 18 last year had expressed anguish and concern over certain speculations and reports in the media regarding the Collegium’s recommendations for appointment of Supreme Court judges even before the selection process was finalised.

In 2015, the Parliament passed a law to replace the Collegium with a National Judicial Appointments Commission (NJAC). This was struck down as unconstitutional by the Supreme Court in the Fourth Judges’ Case as the new system would undermine the independence of the judiciary. Putting the old system of the collegium back, the Court invited suggestions, even from the general public, on how to improve the system.

The NJAC would have been responsible for the recruitment, appointment and transfer of judicial officers, legal officers and legal employees under the government of India and in all state governments. On October 16, 2015, a Constitution Bench of the Supreme Court by a 4:1 majority upheld the Collegium system and struck down the NJAC as unconstitutional after hearing several petitions, with the Supreme Court Advocates-on-Record Association being the first and lead petitioner. Justices JS Khehar, Madan Lokur, Kurian Joseph and Adarsh Kumar Goel had declared the 99th Amendment and NJAC Act unconstitutional while Justice Jasti Chelameswar upheld it.

In 2009, the recommendation for the appointment of a judge of a High Court made by the Collegium of that court had come to be challenged in the Supreme Court. The Court held that who could become a judge was a matter of fact, and any person had a right to question it. But who should become a judge was a matter of opinion and could not be questioned. As long as an effective consultation took place within a Collegium in arriving at that opinion, the content or material placed before it to form the opinion could not be called for scrutiny in court.

As per the Constitution, a judge is appointed to the Supreme Court by the president on the recommendation of the Collegium comprising the chief justice of India, the four most senior judges of the Court and the seniormost judge of the High Court of the prospective appointee. This resulted in a Memorandum of Procedure being followed for the appointments. Judges used to be appointed by the president on the advice of the Union cabinet. After 1993, no minister, or even the executive collectively, can suggest any names to the president, who ultimately decides on appointing them from a list of names recommended only by the Collegium.

Initially, the Constitution provided for a top court with a chief justice and seven judges. In the early years, a full bench of the Supreme Court sat together to hear cases presented before them. As the work of the Court increased and cases began to accumulate, Parliament increased the number of judges (including the chief justice) from the original eight in 1950 to 11 in 1956, 14 in 1960, 18 in 1978, 26 in 1986, 31 in 2009 and 34 in 2019.

—By Shivam Sharma and India Legal Bureau

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