Reports say that Supreme Court (SC) Collegium headed by Chief Justice of India NV Ramana has forwarded nine names, three of them women, for filling the apex court’s vacancies of judges. If cleared, one of them could become the first woman CJI. This is the first time in close to two years that any recomendations have been sent to the government by the Collegium for the appointment of judges even as the process has become mired in complexities.
Why Is This Significant?
September 2019 was the last time when a new judge was elevated to the Supreme Court, when in fact, four judges were appointed at one go. Justice SA Bobde, CJI Ramana’s predecessor, did not make a single recommendation for an appointment during his tenure even as vacancies kept growing. With the retirment of Justice Rohinton Nariman in August 2021, the top court came to have nine empty seats. Excluding the CJI, the SC has a mandated strength of 33 justices, but there are 24 judges as of August 2021, excluding the CJI.
The delay in the finalisation of candidates speaks to the controversy that surrounds the process of appointment of judges of the Supreme Court, and High Courts — which weresaid in February this year to be together facing a shortfall of 400 judges — in the light of the National Judicial Appointments Commission (NJAC) episode.
How Are Judges Appointed?
Article 124 of the Constitution lays down the process for the selection of SC and HC judges, saying that the President of India shall shall make the appointments after consulting with the Chief Justice of India and other SC and HC judges as he considers necessary. Over the years, a Collegium system has taken shape, which mandates that a panel led by the CJI and composed of four other senior-most SC judges will make recommendations to the President for the naming of SC and HC judges.
There is no procedure laid down for the appointment of the CJI, but the convention that has come to be accepted is for the outgoing CJI to name his successor, which is strictly expected to be the senior-most judge in terms of years served as an SC judge. However, there have been two occasions, in the 1970s, when the senior-most judge was superseded for the top post.
What Was The NJAC Controversy?
Seeking to replace the Collegium system, the Centre in 2014 had set up the National Judicial Appointments Commission (NJAC) with amendments of the Constitution brought in to lay down a fresh procedure for the selection of judges. Instead of the Collegium, the Centre proposed a panel comprising the CJI as its chairperson and two other senior-most judges of the SC, the Union Law Minister, the Leader of Opposition in Lok Sabha and two other eminent personalities whose names were to be recommended by the Prime Minister.
But the legislations were challenged in SC on grounds of unconstitutionality and a five-judge bench of the apex court ruled that the involvement of the Union executive in deciding the composition of the NJAC, and their involvement, thus, injudicial appointments, violated the independence of the judiciary. The held in its 2015 judgment that appointments of judges through NJAC violated the principle of separation of powers, which is a basic feature of the Constitution.
What Has Been The Situation Like?
The recommendation of the collegium is made to the Union Law Ministry, which then forwards the names to the PM, which then are passed on to the President. The Centre can send back a name forwarded by the Collegium, but if the name is sent back again, the government has to clear it. However, there is no fixed timeline within which a name has to be recommended and cleared for the appointment of a judge.
Among the nine names recommnded by CJI Ramana is that of Justice BV Nagarathna of the Karnataka High Court who, if elevated, can become the first woman CJI.
Since the NJAC issue, successive CJIs have taken up the delay by the Centre on clearing names recommended by it only for the Centre to put the ball back in the top judiciary’s court, leading to an “unseemly blame-game between the government and the collegium through sworn affidavits".
Therefore, CJI Ramana’s move to send names for fresh appointments has been described as ending a “logjam" on the selection of judges.