With just over a month left in his 14-month tenure as Chief Justice of India, the Justice S A Bobde-led collegium is yet to make its first recommendation of a judge to be appointed to the Supreme Court since he took office in November 2019.
The last time a CJI retired without a single appointment to the SC was in 2015 during the tenure of CJI H L Dattu when there was an unprecedented stand-off between the judiciary and the government over the National Judicial Appointments Commission (NJAC).
This time, though, the impasse is within.
Sources told The Indian Express that one reason is the lack of consensus in the collegium – comprising CJI Bobde and Justices NV Ramana, Rohinton Nariman, U U Lalit and AM Khanwilkar – on recommending Justice Akil Kureshi, Chief Justice of Tripura High Court, to the apex court.
The stalemate in the collegium comes even as the process of appointment of at least six SC judges is due.
The apex court is short of four judges while two retirements — of CJI Bobde and Justice Indu Malhotra — are due in the next two months. Additionally, Justices Ashok Bhushan, Rohinton Nariman and Navin Sinha will retire this year.
Justice Kureshi is, currently, No. 2 in the all-India seniority list after Karnataka HC Chief Justice Abhay Oka whose parent HC is the Bombay HC. While Oka is set to retire in May 2022, justice Kureshi will retire in March 2022. However, in terms of regional representation, the SC currently has four judges- CJI Bobde, justices AM Khanwilkar, DY Chandrachud, Bhushan Gavai from Bombay HC, which is also justice Oka’s parent HC, there is only one judge- justice MR Shah from the Gujarat HC which is also justice Kureshi’s parent HC.
Justice Kureshi’s appointment as CJ of Tripura was also a point of contention for the then SC collegium headed by CJI Ranjan Gogoi.
In September 2019, the SC court collegium had reversed its May 2019 recommendation appointing Justice Kureshi as CJ of Madhya Pradesh High Court after the government sent the file back for reconsideration and instead recommended him for the position of Chief Justice of Tripura.
Without citing reasons, the collegium said that its reconsideration was based on the “communication and material” placed by the Department of Justice.
Even in November 2018, when the post of CJ of the Gujarat High Court fell vacant, Justice Kureshi, who was then the seniormost judge of the High Court, was to take charge as acting Chief Justice of Gujarat HC as per convention.
However, the government named Justice AS Dave, who was then the second most senior judge in the Gujarat High Court after Kureshi, as acting Chief Justice and, instead, transferred Justice Kureshi to Bombay High Court as its fifth most-senior judge.
This unusual situation would have led to Justice Kureshi being a judge in Gujarat HC until he took office in Bombay HC while his junior would be acting CJ. However, this, too, was reversed when the Gujarat HC Bar launched a protest and moved the SC.
CJI Bobde inherited just one vacancy, that of former CJI Ranjan Gogoi, against the total strength of 34 judges when he took over. However, three judges have retired since leaving the SC with 30 judges.
The first vacancy in CJI Bobde’s tenure was at least nine months ago when justice Deepak Gupta retired in May last year.
In contrast, four of his predecessors had at least four appointments by the government irrespective of the duration of their tenures. Former CJI Ranjan Gogoi inherited seven vacancies when he took office but 14 judges were appointed during his tenure and, for a few weeks before he retired, he presided over a SC that functioned at its full strength.
Apart from the 14 SC appointments, 146 high court appointments were made during his tenure. Gogoi, incidentally, had a slightly shorter tenure of 13 and a half months as CJI.
Former CJI Dipak Misra, who preceded Gogoi, saw four SC appointments and 81 appointments to high courts although his 13-month tenure was fraught with controversy including an unprecedented impeachment move against him. He was CJI from August 2017 to October 2018.
Four SC judges were appointed during the term of Misra’s predecessor, former CJI JS Khehar in his short tenure of less than eight months. Before CJI Khehar, former CJI TS Thakur who was CJI between December 2015 and January 2017 also saw four judges appointed to the SC.
However, between September 2014 and December 2015, when Justice HL Dattu was CJI, there were no appointments made to the SC as the NJAC, which sought to alter the process of judicial appointments by giving the executive a foot in the door, was under challenge before the court.
On October 16, 2015, a five-judge bench of the SC struck down the constitutional amendment that sought to establish the NJAC. That case, which had the judiciary fighting an existential turf-war against the government, had grounded the appointment of judges to the SC as well as to the HCs.