The new CJI has a long ‘to-do’ list before him

With five vacancies in the SC and five more SC judges due to retire this year and the central government sitting over collegium’s recommendations, the new CJI has his task cut out

The new CJI has a long ‘to-do’ list before him

Lokendra Malik

The convention of appointing the next senior-most judge to succeed the retiring Chief Justice of India was breached twice in the 1970s, first in 1973 and then in 1977. The superseded judges had then chosen to resign in protest. The convention, designed to minimise the executive’s interference in judicial appointments, has held sway since then. Thus, the senior most SC judge Justice N.V. Ramana will be taking over as the Chief Justice of India on April 24 from the present CJI Justice Bobde and will hold office till August 26 next year.

As the next Chief Justice of India over the next 16 months, Justice Ramana has several challenges before him. The toughest challenge for Justice Ramana will be to revamp the administrative machinery of the apex court and streamline the functioning of the collegium. It is now widely accepted that the Supreme Court collegium of the five senior-most judges should act more transparently and be made more accountable in order to inspire confidence and trust in the judiciary.

In a democratic system, no public authority can exercise power without accountability. But only a handful of people, who have been members of the collegium know how the collegium selects the judges to the higher judiciary. In a few cases the collegium has even reversed its earlier recommendations, raising doubts about the process and the procedures followed. The credibility of the collegium and the appointment process have consequently come under a cloud. How judges are appointed or selected should surely not remain mired in mystery.

The new collegium headed by the new CJI will also have to move in quickly to fill up vacancies in the Supreme Court. Currently, there are five vacancies in the court and with five more judges due to retire later this year, as many as 10 vacancies of SC judges alone may have to be filled in the next one year or so. In sharp contrast, the collegium led by the outgoing Chief Justice of India has not yet made a single recommendation to the central government for appointment of a judge in the Supreme Court during the last 14 months.

As per the established convention, the outgoing Chief Justice does not involve himself with the collegium’s functioning once the government notifies the appointment of his successor. In such a situation, Justice Bobde may perhaps become the first Chief Justice of the Supreme Court to demit office without making any appointment of a judge to the Supreme Court. However, the collegium led by him did make several recommendations to the central government for appointment of High Court judges.

The collegium also faces other daunting issues like proportionate representation and seniority of High Court judges being elevated to the Supreme Court. The new Chief Justice of India will have to break the wall of distrust within the collegium, that might have prevented a consensus on elevating High Court judges during the last 14 months. He will also be required to assure the country that the best legal minds are indeed being elevated to the higher judiciary as judges.

Adequate representation of women and minorities on the bench of the Supreme Court is another issue that needs to be addressed urgently. The apex court currently has just one woman as judge, and given that virtually half the population comprise women and also because gender sensitive cases have seen a sharp rise, there is a strong case for many more women judges in the Supreme Court.

The Supreme Court has only one Muslim judge and no Sikh, Buddhist, Jain or an Adivasi. This is also a matter of grave concern. The Court is an institution of governance that needs to maintain public trust. Should not the minority communities have better and higher representation on the Bench, especially when there is evidence that a disproportionate number of these minorities are victims of the state and the judicial system?

These communities deserve a fair representation in the Apex Court. The collegium is duty-bound to diversify the Bench to give adequate representation to all sections of society so that public trust, which is the greatest strength of the judiciary, could be restored. In addition to this, the perception, if not the reality, that only a few dominant castes/communities monopolise the Bench of the higher judiciary needs to be dispelled.

The new Chief Justice of India and the Supreme Court collegium will also have to take up the issue of recommendations pending with the central government. The central government has no justification for sitting over the recommendations for appointment of judges for an indefinite and prolonged period of time. As per media reports, hundreds of names are pending with the central government for elevation to the High Courts. They need to be cleared without further delay. Nothing can justify delaying judicial appointments. The government has always enjoyed the right to communicate its reservations, if any, to the collegium with a request for reconsideration. The collegium will hopefully also take a stand against the central government segregating recommendations made by the collegium, accepting some and rejecting others. The central government has no such power to segregate the recommendations of the collegium without taking it into confidence.

Time has come for the Supreme Court collegium to assert its primacy in judicial appointments and transfer of judges. After the Second, Third, and Fourth Judges’ cases, the central government should not have any doubt left about the collegium’s primacy in judicial appointments. In the existing framework, the central government has limited space that it can use to communicate its views to the collegium. But the central government has to act as per the collegium’s decisions.

The government cannot block judicial appointments by putting the recommendations on hold for months together. Some guidelines may be incorporated in the Memorandum of Procedure to deal with this important issue. The credibility of the collegium must be restored and independence of the judiciary secured. There should be no place for mysterious and opaque functioning of the collegium, which must work with constructive collegiality.

(The writer is a lawyer practising at the Supreme Court of India. Views are personal).

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