The beginning of the end of a judicial deadlock on vacancies in the highest court is immensely welcome. The recommendation by the Supreme Court Collegium headed by Chief Justice of India NV Ramana of nine names for appointment as judges to the top court, breaks the 22-month-long impasse during which no consensus could emerge within the Collegium even as vacancies remained unfilled. The forward movement on appointments — the government’s response is awaited — is also heartening because it brings into sight the possibility of the first woman chief justice of India. But the prolonged stalemate has not gone without a trace. It had reportedly developed around the insistence of Justice Rohinton Nariman, who retired only days ago, on the inclusion of the two senior-most judges in the all-India list of HC judges in any list of recommendations — one of the two judges, Chief Justice of Tripura High Court Akil Kureshi, is absent from the final nine. Yes, an institution cannot be kept on hold because of one individual. And yet, the missing name on the Collegium’s list raises unanswered questions.
The underlying problem is the opaqueness of the judicial appointments process. No reasons are given for the choice of those selected, or left out. This was not always so. In October 2017, the Collegium, then headed by CJI Dipak Misra, had decided that “decisions henceforth taken by the Collegium indicating the reasons shall be put on the website of the Supreme Court, when the recommendation(s) is/are sent to the Government of India…”, because “on each occasion the material which is considered by the Collegium is different”. And briefly, for about two years, the court did try to bring in more transparency in matters of elevation and transfer of judges. But now the absence of any public reasoning has cast the spotlight on a judge whose elevation became a point of contention even earlier. In September 2019, the SC Collegium headed by CJI Ranjan Gogoi reversed its May 2019 recommendation appointing Justice Kureshi as chief justice of the 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. Earlier, in November 2018, when the post of chief justice of Gujarat High Court fell vacant, it was not Justice Kureshi who took charge as acting CJ, as the senior-most judge, as per convention. He was, instead, transferred to Bombay HC as its fifth senior-most judge. It is this sequence of events that makes his absence from the Collegium’s list more conspicuous.
While the possibility of a woman CJI has now come into view, the fact that her tenure will last just over a month highlights the urgency of planning ahead, widening the pool — more women judges need to be elevated in the high courts. This is necessary and important, as never before, in an institution whose centrality in keeping constitutional democracy honest and tethered to its founding ideals, commitments and rules only grows.
This editorial first appeared in the print edition on August 20, 2021 under the title ‘Welcome the nine’.