Updated: August 12, 2021 7:17:05 am
Justice Rohinton Fali Nariman, the second most senior judge of the Supreme Court, retires Thursday and his exit, apart from adding to the vacancy list, will return the spotlight on the unprecedented impasse within the Collegium over appointment of judges that has been there for nearly 22 months now.
Sources told The Indian Express that Justice Nariman, who has been part of the Supreme Court Collegium since March 2019, has stood firm that no consensus can emerge on names unless two judges who are most senior in the All India Seniority List for High Court judges are first recommended.
Karnataka High Court Chief Justice Abhay Oka is No. 1 on the seniority list, followed by Tripura High Court Chief Justice Akil Kureshi. While Justice Oka’s parent High Court is Bombay, Justice Kureshi is from the Gujarat High Court.
With Justice Nariman’s retirement, the Supreme Court will have only 25 judges against a sanctioned strength of 34 judges. Additionally, Justice Navin Sinha is set to retire on August 19, which will leave the Supreme Court with 10 vacancies to be filled.
The last appointment made to the Supreme Court was in September 2019 and the earliest vacancy was created in November 2019 when former Chief Justice of India Ranjan Gogoi retired.
This week, Justice Nageswara Rao will replace Justice Nariman in the Collegium and a fresh attempt at arriving at a consensus is likely to begin. While a prolonged impasse affects the functioning of the Supreme Court currently, it would mean shorter tenures for those who would be appointed to the top court later.
Apart from Chief Justice of India N V Ramana, the Collegium also comprises Justices U U Lalit, A M Khanwilkar, D Y Chandrachud and Rao. While the five most senior judges decide on appointments to the Supreme Court, only the three most senior decide appointments to the High Courts.
A crisis of sorts began during the tenure of former CJI S A Bobde, who had inherited almost a full court from his predecessor CJI Gogoi. A lack of consensus on the names of Justices Oka and Kureshi stalled the process entirely and CJI Bobde retired without making a single appointment recommendation during his 18-month tenure.
The Indian Express had earlier reported that at least two judges of the Supreme Court had expressed their reservations to a Collegium meeting called by CJI Bobde, just days before his retirement. Even that last ditch effort ended in a deadlock with “no consensus” on the future course of action.
It is learnt that CJI Bobde even initiated a conversation on recommending a judge who could potentially become the first female Chief Justice of India. The names of Karnataka High Court judge Justice B V Nagarathna and Justice Bela Trivedi of Gujarat High Court came up.
Despite in-principle agreement to recommend a potential female CJI, there was no headway due to lack of consensus over the names of Justices Oka and Kureshi. According to sources familiar with developments, names from the Bar were also discussed but the efforts did not fructify.
The impasse has also affected the appointment of High Court judges and Chief Justices. Four High Courts — Allahabad, Calcutta, Chhattisgarh and Himachal Pradesh — currently have acting Chief Justices. Since CJI Ramana took office, only seven judicial officers — six to Madhya Pradesh High Court and one to Gauhati High Court — have been recommended for appointment as judges.
Significantly, not a single recommendation of an advocate has been made since April for appointment as a judge of a High Court.
The last time such an impasse on judicial appointments occurred was in 2015 during the tenure of CJI H L Dattu when there was a standoff between the judiciary and the government over the National Judicial Appointments Commission (NJAC).
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