A crisis in judicial vacancies looms ahead for the Supreme Court in 2018

There are 395 vacancies across 24 high courts and 5,984 judicial vacancies in the subordinate judiciary.

December 31, 2017 06:29 pm | Updated December 03, 2021 10:37 am IST - New Delhi

 A view of the Supreme Court in New Delhi.

A view of the Supreme Court in New Delhi.

With six judicial vacancies pending, the Supreme Court seems to be staring at a crisis with seven more of its judges set to retire in the course of 2018.

The vacancies loom even as there seems to be no end to the prolonged stalemate between the SC collegium and the government over finalising a Memorandum of Procedure (MoP) to appoint judges to the SC and high courts.

There has not been a thaw in sight on the MoP ever since the National Judicial Appointments Commission (NJAC), a brainchild of the NDA government passed unanimously by the Parliament, was declared unconstitutional by a Constitution Bench of the SC in October 2015.

The Constitution Bench, had as if in consolation shortly after striking down the NJAC which gave the political class an equal say in judicial appointments, asked the government to take the initiative and draft the MoP in a separate judgment in December 2015. It had taken public opinion and agreed that the collegium system needed improvement.

Minister of State for Law and Justice P.P. Chaudhary recently informed the Parliament the trajectory of the to-and-fro between the Law Ministry and the Supreme Court collegium over the MoP. The first draft of the MoP was sent to the SC on March 22, 2016. The SC replied on May 25 and July 1 of 2016. The government had highlighted the need for transparency, a separate secretariat, eligibility criteria and mechanism to deal with complaints on August 3. The SC collegium sent its finalised proposal on the draft on March 13, 2017. It rejected the idea of a government veto citing national security on names recommended by the collegium.

Mr. Chaudhary said the Supreme Court collegium should re-visit its selection of persons for judicial appointments in the light of its judgment holding sitting Calcutta High Court judge, Justice C.S. Karnan, guilty of contempt of court.

“The Government of India has conveyed the need to make improvement on the draft MoP to the Supreme Court,” Mr. Chaudhary replied to a question in the Parliament.

As the fracas over the MoP continues, there seems to be no move to fill up the six current vacancies in the Supreme Court, which has only 25 sitting judges when the full strength should be 31. However, seven more crucial vacancies are looming ahead. Of the seven, four comprise of judges who are part of the Supreme Court collegium itself. This means the collegium would see a complete, if not drastic, overhaul in 2018.

Chief Justice of India Dipak Misra, Justices J. Chelameswar, Madan B. Lokur and Kurian Joseph — all are part of the five-member SC collegium — are retiring in 2018. Justice Ranjan Gogoi, the current Judge Three, is in line to be Chief Justice in October 2018.

Justices Amitava Roy, R.K. Agrawal and A.K. Goel are the other judges who are retiring in 2018.

Besides, nine high courts are functioning with Acting Chief Justices. The government informed that it has “not received any proposal for filling up of six vacancies of judges in the Supreme Court and for appointment of Chief Justices in the nine high courts which are functioning with acting Chief Justices.”

“During 2016, four judges in the Supreme Court and 14 Chief Justices of high courts were appointed. Besides, 126 fresh appointments of judges were made in high courts, which is the highest number in a calendar year. During 2017, as on 19.12.2017, 5 Judges in the Supreme Court, eight Chief Justices of high courts and 115 fresh appointments of judges in the high courts have been made,” Mr. Chaudhary replied in the Parliament.

There are 395 vacancies across 24 high courts and 5,984 judicial vacancies in the subordinate judiciary.

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