A difference of opinion has occurred in the powerful Supreme Court collegium over the correct procedure to recommend four names, one of them a senior advocate, to the apex court Bench after months of presenting a unified front which saw many firsts in judicial appointments to the constitutional courts.
The schism within the collegium comes at a crucial time when the letter from the Union Law Minister requesting the incumbent Chief Justice of India, Justice U.U. Lalit, to recommend the name of his successor may arrive any day now. The letter from the Law Minister kick-starts the process of appointment of the next Chief Justice, the 50th one.
The process, according to the Memorandum of Procedure of Appointment of Supreme Court Judges, begins with the Union Law Minister seeking the recommendation of the outgoing CJI about the next appointment. The Minister has to seek the CJI's recommendation "at the appropriate time".
The Memorandum does not elaborate or specify a timeline. Usually, the Law Minister sends his request and the outgoing CJI makes his recommendation with a month to spare before his retirement. Chief Justice Lalit is set to retire on November 8. This means that the Minister’s letter may arrive before or by October 8.
The next in line to be the Chief Justice as per the seniority norm is Justice D.Y. Chandrachud, who is number two in the Supreme Court.
A collegium meeting scheduled for September 30 to discuss and finalise the recommendation of the four names could not take place as Justice Chandrachud’s Bench sat in court till 9.10 p.m. due to a heavy board of cases. The court went into recess for the Dussehra holidays from the next day, October 1, a Saturday.
The court would reopen on October 10, two days after October 8 or the one-month mark. Ordinarily, the outgoing CJI does not make recommendations for judicial appointments when the appointment process for his successor is in gear.
Chief Justice Lalit has hardly 15 working days left before November 8, which is a holiday. His last working day would effectively be November 7. The Diwali holidays would also intervene between October 24 to October 29. Hence, the September 30 meeting may have been a crucial one for the collegium of the court’s five senior-most judges — the CJI, Justices Chandrachud, S.K. Kaul, S. Abdul Nazeer and K.M. Joseph — to deliberate the four names.
Lack of time before his retirement and the fact that there are already five vacancies in the court may have prompted Chief Justice Lalit to propose to his collegium members to clear the four recommendations through circulation.
However, two of the collegium judges have objected to the recommendation of the four names through circulation. They have said the names ought to be deliberated by the collegium members in person. The stalemate has left the fate of the four names in limbo.
The Lalit Collegium had earlier recommended Bombay High Court Chief Justice Dipankar Datta as Supreme Court judge. The successful recommendation and appointment of Justice Datta and the four names, if it happens, would return the Supreme Court to its full sanctioned strength until the retirement of Justice Hemant Gupta on October 16.