Out of 34 posts of judges in the Supreme Court of India, eight are currently vacant. Unless fresh appointments are made before the end of August, the number of vacancies will climb to 10 – possibly the highest ever in the country’s top Constitutional court.
The last time the Supreme Court got new judges was on September 23, 2019 when four judges were elevated to the bench.
Over 22 months later, the Supreme Court collegium (SCC) hasn’t managed to recommend new names for elevation to the Supreme Court.
Sources indicate that fresh recommendations may not be finalised before mid-August, by when senior judge and a member of the SCC Justice Rohinton Nariman would have retired. While Justice Ashok Bhushan retired last month, two other judges – Justices Rohinton F Nariman (August 12) and Navin Sinha (August 18) are scheduled to retire next month.
Justice Nariman, sources said, has been pushing the other members of the collegium to bring only deserving candidates to the Supreme Court. While there was general consensus over most of the names, consensus eluded the SCC over some names, including Tripura High Court Chief Justice Akil Abdulhamid Kureshi. The Narendra Modi government had stalled the appointment of Justice Kureshi as Chief Justice of Madhya Pradesh, forcing the SCC to eventually revisit its recommendation and make a fresh recommendation to send him as CJ of much-smaller Tripura High Court. As a judge of Gujarat High Court, Justice Kureshi had sent current Union Home Minister Amit Shah to custody for his alleged role in the Sohrabuddin fake encounter case.
Incidentally, as per the all-India seniority of judges, Justice Kureshi is the second senior-most in the country after Karnataka High Court Chief Justice Abhay Shreeniwas Oka, whose parent HC is Bombay HC.
Among the other senior HC Chief Justices is Delhi High Court CJ DN Patel, who is third in all-India seniority but junior to CJ Kureshi.
There are also indications that some members of the SCC are keen to bring in a lady judge, possibly Karnataka HC Judge B.V. Nagarathna, directly to the Supreme Court so that she goes on to become the first woman CJI.
Currently, there is only one woman judge – Justice Indira Banerjee – in the Supreme Court.
The SCC could also consider bringing in a Scheduled Caste judge – possibly senior Kerala High Court judge CT Ravikumar – to the Supreme Court to make the court more representative. Currently, Kerala High Court has only one Judge in the Supreme Court while there is only one Scheduled Caste representative in the top court.
The previous Chief Justice of India (CJI) SA Bobde, who had a 17-month-long tenure as CJI, could not convince the other four members of the Supreme Court collegium to recommend even a single name for elevation even as vacancies in the apex court continued to mount.
There are many within and outside the legal fraternity who are wondering if the fact that new names haven’t been recommended yet has something to do with the strong stand taken by Justice Nariman with regard to elevation of at least one candidate.
“It seems, the CJI is waiting for Justice Nariman to retire before he calls a meeting of the larger collegium to take a final call on names for the Supreme Court. It is also not exactly a state secret that the government has its own choice as to who it wants or doesn’t want in the Supreme Court. The big question is whether the SCC will play along and grant the government its wish,’ a former CJI observed.
A sitting judge of the top court, who didn’t wish to be quoted, told India Ahead News that the situation was “worrisome”. “For whatever reason, the SCC isn’t clearing names. It is worrisome. Look at the record. The last time SCC made a recommendation was on May 20 when it recommended the name of Justice Sanjay Yadav to be appointed Chief Justice of Allahabad High Court. Recommending names, not just against existing vacancies but against vacancies that are scheduled to arise in the next months, is an important function of the SCC,” he said.
There are indications that the SCC could meet after the retirement of Justice Nariman and recommend names for some of the existing vacancies in the Supreme Court.
As of now, several high courts are either not represented – Orissa, Patna (after August 18), Chhattisgarh, Madhya Pradesh, Himachal Pradesh, Jammu and Kashmir and Jharkhand, or inadequately represented in the apex courts – Andhra Pradesh High Court, the parent HC of the current CJI NV Ramana, Telangana, Kerala and Madras.
Not just the SC, even High Courts have huge vacancies.
Last week, newly-appointed Union Law and Justice Minister Kiren Rijiju told Parliament that against a total sanctioned strength of 1,098 judges in the high courts, as many as 454 posts were vacant.
Sources said in the first seven months of this year, the Centre has cleared the appointment of only 40-odd judges, while the figure for 2020 is 66. In the last few years, the number has been coming down, with 81 judges being appointed in 2019 and 108 in 2018.
It is learnt that there are about 100 recommendations made by the collegium of various high courts which are currently pending with the SCC. A similar number is pending with the government, which has yet to clear those names.
The Supreme Court collegium is also yet to recommend names for appointment of Chief Justices of four high courts – Calcutta, Chhattisgarh, Himachal Pradesh and Allahabad.