Supreme Court Collegium faces tough balancing act over vacancies

Just a month ahead of CJI Bobde’s retirement, panel must walk tightrope between representation from High Court and seniority.

Updated - March 22, 2021 09:57 am IST

Published - March 21, 2021 06:11 pm IST - NEW DELHI

The Supreme Court of India in New Delhi. File

The Supreme Court of India in New Delhi. File

The Supreme Court Collegium is striving to reach a consensus on recommendations to fill up the five vacancies in the apex court.

With barely a month left for Chief Justice of India Sharad A. Bobde to retire, the Collegium is discussing diverse opinions from within on issues like proportionate representation from various High Courts and seniority among High Court judges before finalising the names to recommend to the government for appointment.

Proportionate representation from High Courts and seniority, though only conventions and not constitutional or legal mandates, carry weight during the appointment process.

Fading strength

The last appointments to the Supreme Court were of Justices Krishna Murari, S. Ravindra Bhat, V. Ramasubramanian and Hrishikesh Roy in September 2019. The past several months have seen the Supreme Court function under a series of challenges posed by the pandemic even as its judicial strength faded to 29 with the recent retirement of Justice Indu Malhotra.

The year 2021 will see four retirements in the top court, starting with Chief Justice Bobde, Justices Ashok Bhushan, Rohinton Nariman and Naveen Sinha. The latter two judges both retire in August and a few days apart.

The names of several High Court judges are in the zone of consideration.

Information published by the Law Ministry on March 1 shows that the s e niormost among current Chief Justices of the 25 High Courts, as per their initial appointment in 2003 and 2004, are Karnataka Chief Justice A.S. Oka, Tripura Chief Justice Akil Abdulhamid Kureshi, Delhi Chief Justice D.N. Patel, Allahabad Chief Justice Govind Mathur, Gujarat Chief Justice Vikram Nath and Calcutta Chief Justice T.B. Radhakrishnan.

Of this, Chief Justices Mathur and Radhakrishnan will retire during the course of 2021. Other Chief Justices of High Courts retiring this year include Telangana Chief Justice Kumari Hima Kohli, Chhattisgarh Chief Justice P.R. Ramachandra Menon, Himachal Chief Justice L.N. Swamy and Uttarakhand Chief Justice R.S. Chauhan.

Crowded space

Of the remaining, however, most Chief Justices belong to parent High Courts which already have multiple representations in the Supreme Court judiciary.

For instance, Justice Oka’s parent High Court is Bombay, which presently has the largest representation in the Supreme Court with Chief Justice Bobde, followed by Justices A.M. Khanwilkar, D.Y. Chandrachud and B.R. Gavai. Justices Chandrachud and Gavai are in line to be CJIs as per the seniority norm.

Justice Vikram Nath’s parent High Court is Allahabad. But this High Court already has three representations — Justices Bhushan, Vineet Saran and Murari. Justice Kohli’s parent High Court is Delhi, which has three representations in S.K. Kaul, Sanjiv Khanna and S. Ravindra Bhat in the apex court.

Then again, Justice Swamy is from Karnataka. But this HC has three representations in the Supreme Court with Justices M.M. Shantanagoudar, S. Abdul Nazeer and A.S. Bopanna. However, the name of Justice B.V. Nagarathna from Karnataka High Court is under consideration in the Collegium to replace Justice Indu Malhotra’s vacancy.

While Allahabad High Court Chief Justice Govind Mathur is from Rajasthan. The apex court already has Justices Ajay Rastogi and Dinesh Maheshwari from that State. Other High Courts which have multiple representations in the Supreme Court are Calcutta and Punjab and Haryana.

There are in the Supreme Court, nevertheless, some State HCs which have lone representations. These include Justice N.V. Ramana, the next CJI as per the seniority norm, whose parent HC is Andhra; Justice Ramasubramanian whose is from the Madras HC; Justice K.M. Joseph whose parent HC is Kerala; Justice R.S. Reddy is the sole representation from Telangana HC; Justice Roy whose parent HC is Gauhati; Justices M.R. Shah and Sinha from Gujarat and Patna HCs, respectively.

In fact, the number of direct appointees from the Supreme Court Bar to the Bench — Justices Nariman, U.U. Lalit and L. Nageswara Rao — exceeds representation from some State HCs.

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