The National Judicial Appointments Commission brought in by the NDA government could be appointing 21 judges to the Supreme Court during Narendra Modi’s tenure. That makes up 68 per cent of the total strength of 31 judges in the apex court.
Given the corresponding 759 possible vacancies that may arise in the 24 high courts across the country till May 2019, the new NJAC could be involved in selection of 80 per cent of those judges, including chief justices of almost all the high courts, over five years.
* First to retire: Present CJI R M Lodha
The constitutional amendment Bill cleared by Parliament last week, enabling the establishment of the NJAC to replace the collegium system, has to be ratified by at least half of the state legislatures. That process may be completed by early next year, clearing the way for the NJAC to start functioning.
The six-member body would then be responsible for deciding appointments to the higher judiciary, including the Supreme Court, as well as for transfers of sitting judges.
An analysis of the data kept by the Ministry of Law and Justice as well as the Supreme Court and high courts shows that by mid-May 2019, when the next general elections are scheduled, there would be 21 vacancies in the apex court. Supreme Court judges retire at the age of 65 years and there is already one vacancy in the court.
In the high courts, the NJAC may be required to fill 759 possible permanent and additional vacancies in that period.
As per Law Ministry figures, as on August 1, 318 of the total 950 posts of high court judges, or 34 per cent, are vacant. That includes 175 of the 642 permanent posts, and 143 of the 308 additional posts. High court judges retire at 62 years.
The previous UPA government had introduced a constitutional amendment Bill in the Lok Sabha in August 2010 to increase the retirement age of high court judges to 65 years. However, the Bill didn’t go through.
If there is no change in the retirement age, by the end of the Modi government, 80 per cent posts in high courts would need to be filled up. This figure would be even higher if one takes into consideration that additional judges are appointed for a two-year period and, if their performance is found satisfactory, they are re-appointed for a further two years.
In the Supreme Court, the first one to retire will be current Chief Justice of India R M Lodha, whose term ends on September 29. He will be followed by Justice Ranjana P Desai, one of the two women apex court judges, who is scheduled to retire on October 30.
Three Supreme Court judges — Justices H L Dattu, who will take over as CJI on the retirement of CJI Lodha, S J Mukhopadhaya and Vikramajit Sen — will retire next year.
As many as six Supreme Court justices will retire in 2016, four in 2017, six in 2018 and one in the first half of 2019. Between now and May 2019, the Supreme Court will also see the retirement of four CJIs, including CJI Lodha.
“The task at hand will not be easy,” says a former high court chief justice. “At least four members of the NJAC — the Chief Justice of India, two senior Supreme Court judges and the Union law minister — would be expected to take time out of their busy schedule to hold regular meetings and recommend names for appointment and propose transfers. The same would also be true of the still-unknown two ‘eminent persons’ who will be nominated to the NJAC by a committee comprising the Prime Minister, CJI and leader of the Opposition in the Lok Sabha/ leader of the largest opposition party in the Lok Sabha. A lot of clarity is still required in the proposed system,” he added.