Supreme Court judgeship: Why the collegium’s prompt recommendations will go a long way

CJI DY Chandrachud

Speaking at an event in April to felicitate the eight new judges of the Supreme Court, Chief Justice of India (CJI) DY Chandrachud said that having the full strength of judges in the top court should not be an aberration but a regular feature.

He said, "There is absolutely no justification or reason for the collegium to keep even a single vacancy unfilled in the Supreme Court and that will be my mission for the future as well."

With the collegium’s May 16 recommendations, it is apparent that the CJI meant what he said. In what could be called a diligent move, the Chandrachud-led collegium on May 16 recommended Justice PK Mishra and senior advocate KV Viswanathan for Supreme Court judgeship.

The collegium system is the way judges of the Supreme Court and the high courts are appointed and transferred. The CJI, with the four senior-most judges of the apex court, makes the recommendations and sends them to the government for consideration. The government, upon analysis, either takes the recommendations forward or sends them back to the collegium for reconsideration. The system evolved by means of Supreme Court judgments, not by an act of Parliament or a constitutional provision. The First Judges case (1981), Second Judges Case (1993), Third Judges Case (1998) and the NJAC case (2015) evolved the collegium system and upheld it as the law of the land.

This recommendation was made just a day after the retirement of Justice MR Shah, a member of the collegium. This is a marked departure from how the collegium has functioned in the past. For instance, during NV Ramana’s tenure as CJI, there were just a handful of days where the apex court functioned at full strength. While appointments were made regularly, the vacancies were never filled.

Similarly, there have been occasions as late as 2018 where the Supreme Court collegium has had the daunting task of filling up as many as nine vacancies. The style of Chandrachud’s collegium, if followed by the future collegiums, will ensure that the top court consistently functions at full strength.

To put things in perspective, when Chandrachud took oath as CJI in November 2022, there were seven vacancies in the apex court with one upcoming retirement. However, by the second week of February, the collegium ensured that it made enough recommendations to fill up all the vacancies.

In December 2022, the collegium had made five recommendations and followed it with two more in January 2023. It is to be noted that recommendation to fill up one of the vacancies had already been made during Chandrachud’s predecessor UU Lalit’s tenure as CJI.

As a result of these proactive measures, the SC functioned at full strength for three months, reducing pendency in the process.

Why is this recommendation important?

After the appointment of Justice JB Pardiwala in May 2022, there has been no clarity on the Chief Justice of India after August 2030. Even though 2030 may seem a long time away, a judge usually serves in the Supreme Court between five and seven years before being elevated as the CJI. Considering this situation, if an appointment is not made in 2023 for a CJI candidate in 2031, the collegium’s task will only get tougher.

For instance, Chandrachud was appointed as judge of the SC in 2016 and he became the CJI in 2022. Similarly, Lalit was appointed as a judge of the SC in 2014 and he became the CJI in 2022.

This essentially means that in order to become a senior judge and then the CJI, a judge would have to have a longer tenure. Thus, the recommendation of senior advocate KV Viswanathan as a judge, if approved, will go a long way both literally and metaphorically.

Even assuming Viswanathan’s appointment is cleared by the government in June or July, he will have a clear seven years of experience as a judge before becoming the CJI.

Why was the recommendation swift?

An important factor at play here is that it is very rare that a member of a collegium participates in the deliberations for appointment of judges to the apex court in the last one month of their tenure. In the last five years, only once has a collegium recommendation been released with the retirement of one of its members less than a month away, even though it is highly probable that the meeting itself might have taken place before the recommendation was made available on the court’s website.

With Justice KM Joseph retiring on June 16, the collegium had just one day after MR Shah’s retirement on May 15 to make these recommendations. Thus, the collegium’s May 16 recommendations were not just swift but timely as well.

What is the way forward?

The Supreme Court will see four more retirements from now to July 7.  Joseph will retire on June 16, while Justice Ajay Rastogi will retire on June 17. Justice V Ramasubramanian will retire on June 29, while Justice Krishna Murari will retire on July 8, shortly after the court reopens after the summer vacation that begins on May 22.

As Justices Joseph and Rastogi are both members of the collegium, the new collegium comprising Justices BR Gavai and Surya Kant in place of the retiring judges will have to meet after June 29 to decide on filling up the three vacancies. Considering the way Chandrachud has handled the vacancies so far, it is highly probable that proactive recommendations will be made.