New Delhi: With the current impasse in the Supreme Court Collegium virtually blocking fresh appointments in existing vacancies in the apex court, the new collegium led by the next Chief Justice of India (CJI) Justice D.Y. Chandrachud will have two years to fill up 18 vacancies — four current and 14 set to arise between October 2022 and September 2024.
Justice Chandrachud will be sworn in as India’s 50th CJI on 9 November and will demit office exactly two years later, on 10 November 2024. Of the 14 impending vacancies — two later this year, nine in 2023 and three in 2024 — the last one will arise in September 2024, just two months before his retirement.
While the sanctioned strength of the apex court is 34, its existing working strength (29) is likely to drop to 27 with the retirement of two more judges, including incumbent CJI U.U. Lalit, over the next month.
The present collegium, led by Lalit, may not be able to appoint any fresh judges to the top court on account of two reasons. First, the ensuing deadlock among members of the collegium over the procedure for finalising candidates and, second, the age-old convention of an outgoing CJI not holding any meeting to deliberate on fresh appointments a month before he or she is due to demit office.
Lalit’s last day in office is on 8 November, which means he cannot call for any meeting on appointments after 7 October. Moreover, the courts are on Dussehra break and will resume work only on 10 October.
In the meantime, the process to nominate the next CJI has already begun with Union Law Minister Kiren Rijiju having written a letter to Lalit, asking him to recommend a successor.
The one-month rule was the reason why Lalit’s predecessor, CJI N.V. Ramana, was stopped by his colleagues from making fresh appointments towards the end of his term. Similarly, CJI S.A. Bobde was disallowed by his colleagues in the collegium from holding a meeting to finalise names for the top court in April 2021.
On both occasions, CJI Lalit was part of the collegium — the five-member high-powered appointment panel comprising the senior-most judges of the apex court.
Collegium objects to CJI Lalit’s proposal
The difference of opinion among members of the collegium over new appointments came to light last week when two of its members objected to CJI Lalit’s “unprecedented” proposal, asking them for their written consent to elevate four persons as judges of the top court.
In a letter he wrote on 30 September, before leaving for Munich, Germany, to attend a conference, CJI Lalit sent a written proposal to collegium members, seeking approval for filling up the four current vacant posts in the top court. While one of the four judges in the present collegium endorsed the proposal, two objected to it and the fourth said he was out of town and would only share his views upon his return to New Delhi.
The two judges who have decried Lalit’s proposal to seek written consent from collegium members said the appointment to high constitutional office and as judges of the highest court should never be done through circulation. According to them, the longstanding practice of holding physical deliberations should be the only process adopted for reaching a consensus on appointments to the top court.
Further, the two judges declined to give their consent on the grounds that they believed the procedure adopted by Lalit was “constitutionally flawed”. The judges, however, asserted that they had no objections to the names suggested by the Chief Justice.
Though Lalit wrote back, asking the two to reconsider their views, the latter, sources told ThePrint, have not responded to his letter yet.
Lalit was probably compelled to write a letter on 1 October because on 29 September, collegium member Justice Chandrachud was unavailable for a pre-scheduled meeting to discuss the appointments due to heavy workload in his court.
While Lalit insisted the four names suggested by him had been finalised, some of the collegium members claimed otherwise. They said 11 names were discussed during earlier meetings and judgments written by the candidates were circulated for collegium members to evaluate, but the members could not peruse them due to heavy workload.
Moreover, reservations have also been raised over the appointment of a senior advocate, who, if appointed now, can go on to become the CJI in 2030. Sources said elevating an advocate at a time when senior high court judges with considerable experience in constitutional courts are in the queue would not be ideal.
In less than a month since Justice Lalit took over as CJI, the collegium led by him was able to recommend Bombay HC Chief Justice Dipankar Dutta’s elevation to the apex court.
However, the government is yet to notify Justice Dutta’s appointment.
(This report has been updated to correct the date of CJI U.U. Lalit’s retirement, and the dates on which Justice D.Y. Chandrachud will be sworn in as CJI and demit office)
(Edited by Amrtansh Arora)