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The deadlock must end

The Supreme Court collegium must act quickly to fill up vacancies on the Bench, says LOKENDRA MALIK.

LOKENDRA MALIK | New Delhi |

“The Indian judicial system is unique not only because of a written Constitution but also because of the immense faith reposed by the people in the system. People are confident that they will get relief and justice from the judiciary. It gives them the strength to pursue a dispute. They know that when things go wrong, the judiciary will stand by them. The Indian Supreme Court is the guardian of the largest democracy”, said Chief Justice of India (CJI) N. V. Ramana while addressing the inaugural India-Singapore Mediation Summit 2021 as a keynote speaker a few days ago.

These thought-provoking observations made by CJI Ramana should inspire all stakeholders of the legal profession to work together to strengthen the rule of law and constitutionalism in the country.

In the light of this development, let us draw CJI Ramana’s attention to some of his unfinished tasks, particularly the increasing number of vacancies of judges in the Supreme Court and the High Courts that need to be given top priority to preserve the people’s faith in the institution of the judiciary.

On 24 April this year, CJI Ramana assumed the highest judicial office in the country based on the seniority principle. His predecessor, Justice S. A. Bobde completed his tenure of around 17 months without making any substantial contribution to the Supreme Court.

However, as a leader of the Supreme Court collegium, he was successful in making several recommendations for appointing High Court judges.

In addition, he also participated in a decision that rightly fixed the timeline for the Central Government to appoint judges. Unfortunately, he could not make even a single recommendation for the appointment of a Supreme Court judge because of an impasse in the collegium.

The last time a Supreme Court judge was appointed was in September 2019 during then CJI Gogoi’s tenure and the earliest vacancy was created in November that year. Admittedly, to recommend the names of some judges for the Supreme Court, Justice Bobde called several collegium meetings, even during his last days in office, but all such meetings ended on an inconclusive note because of a lack of consensus among the collegium members regarding the names of some judges and Chief Justices of High Courts proposed by CJI Bobde due to various reasons such as seniority considerations, geographical issues, representation of High Courts, etc. Currently, the Supreme Court has seven vacancies of judges given the sanctioned strength of 34 judges.

Notably, two more judges of the Supreme Court will retire by the end of this year. In addition to this, three judges will retire by the end of August 2022.

Given this development, the CJI Ramana-led collegium has an extraordinary opportunity to recommend the names of around 13 Supreme Court judges.

CJI Ramana will retire in August next year. Very few Chief Justices get this kind of opportunity to appoint so many judges given their short tenures. CJI Ramana and his collegium colleagues would not miss this great opportunity.

But, first of all, they would have to recharge the collegium’s functioning for building a consensus and passing unanimous recommendations. Under CJI Ramana’s leadership, the Supreme Court collegium has made dozens of recommendations for appointing High Court judges, and the Central Government also cleared such appointments promptly. However, no appointment of a Supreme Court judge has yet been considered by the CJI Ramana-led collegium.

Given the increasing number of vacancies in the Supreme Court, the five-member collegium led by him must initiate the appointment process of judges by breaking the deadlock in the collegium and consider deserving candidates from different religions, castes, communities, genders, and tribes.

The time has come for the collegium members to engage with each other with an open mind for building consensus about the judges to be appointed to the Apex Court. As rightly said, the Indian Supreme Court is the most powerful court in the world. But its strength lies in public trust and diversity that makes the ‘Supreme Court for Indians’, as Professor Upendra Baxi states appositely in his scholastic writings. As the highest court of the largest democracy, the Court must reflect on the composite culture of the nation and should become the Court for all Indians who need justice. Only a few privileged communities and castes should not dominate the judiciary. CJI Ramana and his collegium colleagues are duty-bound to promote diversity in the judiciary, protecting secular constitutional values so that the people maintain their faith in the judicial process.

Currently, the Supreme Court has only one woman judge and one Muslim judge. It is disturbing news for all secular citizens.

The judge-makers should give fair representation to women and minorities in the higher judiciary. It is widely believed that there should always be at least four or five women and minority judges in the Apex Court.

It is not a mere formality; it is a constitutional obligation. The time has also come when the collegium should give India a future woman Chief Justice, and it can happen if more and more brilliant women judges are elevated to the Apex Court so that they could reach the zone of seniority in due course.

Given this discussion, the Supreme Court collegium led by CJI Ramana should take steps to fill up vacancies of judges in the Supreme Court and High Courts soon. As of now, more than 400 vacancies of judges are there in different High Courts in the country.

Some High Courts are functioning without permanent Chief Justices for several months.

The Supreme Court collegium led by CJI Ramana, and comprising Justices R F Nariman, U. U. Lalit, A M Khanwilkar and D Y Chandrachud should meet soon to give the Supreme Court the best judges as per the constitutional mandate set by our great founding fathers.

As head of the collegium, a heavy burden is on CJI Ramana to convince his colleagues on the selection of judges.

The writer is Advocate, Supreme Court of India .