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On 24th April this year, CJI 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 the Chief Justice of India ever since the commencement of the Constitution. But on two occasions- in 1973 and 1977, this convention was ignored and the junior judges were appointed to the office of the Chief Justice of India because of some political reasons. In 1993, in the Second judges’ case, the Supreme Court of India also approved the seniority convention. Now it will be very difficult for the Union Government to breach this convention. CJI Ramana’s predecessor, Justice S. A. Bobde retired on 23 April this year after completing his tenure spanning over 17 months. Surprisingly, during his entire tenure, he could not make a visible contribution to the Supreme Court, particularly in judicial appointments. Unfortunately, as a leader of the Supreme Court collegium, he could not build a consensus in the five-member collegium(G-5) to appoint a judge to the Supreme Court. However, he was successful in making dozens of recommendations to appoint the judges in different High Courts across the country. In addition to this, he also delivered a judgment in the case of M/S PLR Projects Limited v. Mahanadi Coalfields Ltd. that rightly fixed the timeline for the Central Government to appoint the judges in the High Courts. Now the ball is in CJI Ramana’s court. Let us see how does he handle the collegium crisis.

Notably, four judges, namely Justices Krishna Murari, S. Ravindra Bhat, V. Ramasubramanian, and Hrishikesh Roy, were appointed in September 2009 last time during the then Chief Justice Gogoi’s tenure. The earliest vacancy of a Supreme Court judge was created in November that year, after Chief Justice Gogoi’s retirement, but even that vacancy is still lying vacant. It is indeed a matter of grave concern and the collegium members cannot ignore it given the arrears of cases pending in the Supreme Court. It also sends a wrong message to the people about the collegium’s functioning and decision-making process. Admittedly, Chief Justice S. A. Bobde called several meetings of the collegium to discuss the appointments to the Supreme Court, but he failed miserably 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 the High Courts due to various reasons such as seniority considerations, geographical issues, representation of High Courts, etc. As per the media reports, some collegium members were not in favor of ignoring the seniority norms in judges’ selection. Not only this, but a senior collegium member is also rightly taking a stand to protect the interests of minorities in judicial appointments at the Apex Court. It is pertinent to mention that proportionate representation from different High Courts and seniority issues, though only conventions and not legal requirements carry weight during the selection process of judges. But there are precedents where junior High Court judges were elevated to the Supreme Court bypassing the senior High Court judges and even some Chief Justices of High Courts. The media reports also indicate that a senior collegium member has raised his voice to consider the senior High Court judges and Chief Justices for elevation to the Supreme Court. As a result of this development, a deadlock is still prevailing in the Supreme Court collegium, and vacancies are piling up. Thus, something must be done urgently to fill up the 8 vacancies of judges in the Supreme Court. 

  The sanctioned strength of judges in the Supreme Court is 34. Currently, there are eight vacancies of judges in the Apex Court. Two judges, namely Justices Nariman and Sinha, will also retire by the end of the year, and three judges will retire by the end of August 2022. Given this development, CJI Ramana-led collegium has an extraordinary opportunity to recommend the names of around 13 Supreme Court judges. Very few Chief Justices get this kind of opportunity to appoint so many judges in the Supreme Court. Let us hope CJI Ramana and his collegium colleagues do not miss this great opportunity. But, first of all, they need to recharge the collegium’s functioning for building a consensus and passing unanimous recommendations to appoint the brilliant judges in the top court. Thankfully, the three-member Supreme Court collegium(G-3) has made dozens of resolutions for appointing the High Court judges under CJI Ramana’s leadership, and the Central Government also cleared such appointments promptly. However, no recommendation to appoint a Supreme Court judge has yet been made by the CJI Ramana-led five-member collegium(G-5). Given the increasing number of vacancies in the Supreme Court, the five-member collegium should initiate the appointment process of judges for the Supreme Court by breaking the deadlock in the collegium and consider the 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 states appositely in his academic writings. As the highest Court of the largest democracy, the Supreme Court must reflect the composite culture of the nation and should become the Court for all Indians who knock on its doors for getting 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. It is disturbing news for all secular citizens. The judge-makers of our country must give a fair representation to the women and minorities in the Supreme Court and High Courts so that all sections of our society could repose trust in the Indian judicial system. I think there should always be at least 4 or 5 women and minority judges in the Apex Court. It will strengthen the people’s faith in the judiciary.

  Given this discussion, the Supreme Court collegium led by CJI Ramana may take steps to fill up the vacancies of judges in the Supreme Court without delay. As of now, more than 400 vacancies of judges are also lying vacant in different High Courts in the country. Some High Courts are functioning without permanent Chief Justices for several months. The collegium should also take note of this issue. It is high time that the Supreme Court collegium led by CJI Ramana meets early to discuss all these issues and appoint the best judges from diverse backgrounds, including women, minorities, Adivasis, Dalits, etc. Needless to say, individual disagreements over some names will always be there, but care must be taken that the dignity, credibility, and integrity of the Supreme Court collegium does not suffer. We, the People of India, are fully confident that Your Lordships will not disappoint us. Let me conclude this discussion with these scholastic words of the 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.”

Lokendra Malik
Advocate, Supreme Court of India

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