With 6 judges set to retire in two months, what next for Supreme Court?

Supreme Court of India

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 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." However, as the court is scheduled to close for summer vacations on May 19, 60 percent of CJI's collegium colleagues will retire between May 15 and June 17. With no recommendations for elevation to the SC as yet, the CJI's vision of having a full strength might be put on hold, at least till the court reopens after summer vacations on July 3.

The sanctioned strength of the SC is 34 judges. With six judges retiring in less than two months ― between May 14 and July 8 ― that strength will fall to 28, if no appointments are made. One thing that needs to be noted is that the apex court has, in the past, worked with a far lesser strength and the retirement of six judges may not hamper the functioning of the apex court in a major way. However, to ensure that the pendency remains low, it is advisable that the SC functions at full strength.

Justice MR Shah, a member of the collegium, will retire on May 15, followed by Justice KM Joseph and Justice Ajay Rastogi on June 16 and 17 respectively. While Shah's retirement is just days away, 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 in the court’s website.

Under such circumstances, the existing collegium might not be able to recommend judges for elevation to the SC. And even if they do, the recommendations may not be acted upon by the government till the day the vacancy arises.

Another factor at play here Is that the SC collegium does not usually recommend judges in anticipation of vacancies when it is functioning in full strength. Even if the collegium recommends a judge for elevation before the vacancy arises when it is functioning in full strength, and even If the government releases a warrant for appointment, the judge cannot be sworn in till the outgoing judge retires.

Thus, it creates an unprecedented situation where the SC will have five vacancies when it reopens after the summer break.

SC judges retire at the age of 65. Age, however, is not the factor that determines a judge’s place in the collegium. A judge's place in the collegium is determined by seniority in the SC, i.e., the time of appointment and length of tenure in the court. Seniority among the judges of the SC is determined by when they are elevated to the SC.

For instance, CJI DY Chandrachud, who is one-and-a-half years younger to Justice V Ramasubramanian, could reach the top post because he was appointed a judge of the SC in 2016, while Ramasubramanian was appointed to the SC in 2019.

Ramasubramanian, the 14th on the list of seniority, could not reach the top five because he was appointed almost a year after the judges in the collegium. Even though Justice SR Bhat and Justice Krishna Murari were appointed on the same day as Ramasubramanian, they are 12th and 13th in seniority as they were administered oath of office and secrecy ahead of Ramasubramanian.

Since Justice Ramasubramanian retires after a tenure of three-and-a-half years in the SC, he did not serve as a judge of the court long enough to become a member of the collegium.

Justices KM Joseph, MR Shah and Rastogi were all appointed in 2018 and served as judges of the SC long enough to become members of the collegium.

The series of retirements is set to begin on May 14 with Justice Dinesh Maheshwari. This will be followed by Justice MR Shah, who will retire the next day, May 15.

Similarly, Justice KM Joseph will retire on June 16, while Justice Ajay Rastogi will retire on June 17. Justice Ramasubramanian will retire on June 29, while Justice Krishna Murari will retire on July 8, shortly after the court reopens.

By the end of June, the collegium will comprise Justices Sanjiv Khanna, BR Gavai and Surya Kant. Only if this court decides to meet before the courts reopen and send their recommendations after reaching a consensus, can a resolution be released. Assuming they do so, the Union government should clear the recommendations and notify the appointment before July 2. Only under such circumstances can the full strength of the SC function when it reopens on July 3.

However, the Union government has, on some occasions in the past, cleared collegium recommendations in a matter of days. For instance, the collegium recommended the names of Justice Sudhanshu Dhulia and Justice Pardiwala for SC judgeship on May 5, 2022, and the government notified their appointment on May 9, 2022.