7 SC Judges to Retire in 2018, But Where Are Their Replacements?

The Centre is delaying appointment of new judges to the Supreme Court, which could have severe consequences.

On Thursday, 1 March 2018, Justice Amitava Roy of the Supreme Court will retire, becoming the first of 7 judges who will demit their office this year. The list of retirees includes current Chief Justice of India Dipak Misra, as well as three of the four judges who held that unprecedented press conference in January 2018: Justices Jasti Chelameswar, Madan Lokur and Kurian Joseph.

The fact that these many judges are retiring this year is nothing out of the ordinary – the retirement age of 65 is strictly followed, after all. However, what is extraordinary is the fact that there are no replacements for all these judges in sight.

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Why Are There Unfilled Vacancies in the Supreme Court?

The maximum possible strength of the apex court is 31 judges (including the CJI), though this number has never been fulfilled. The current strength, before this year’s retirements, stands at 25. This means that on 30 December 2018, when Justice Lokur retires, there will technically be 13 vacancies at the court that is meant to be the ultimate bastion of liberty in this country.

Of course, you might very well argue that surely this will not happen, surely the number of judges will be replenished. Normally, such optimism would be justified, but these are not, unfortunately, normal times.

For the last several years, the Supreme Court has been engaged in a war of attrition with the Central Government over the appointment of judges to the Supreme Court and the High Courts. Back in April 2016, former CJI TS Thakur actually broke down during a speech addressed to PM Narendra Modi when talking about the delays to appointment of High Court judges caused by the Central Government.

There has always been a tussle between the Executive and the Judiciary over the appointment of judges to the higher judiciary. As things currently stand, the decision rests with the Collegium (5 senior-most judges of the Supreme Court), though these can only be finalised after the Central Government gives their comments (which are not binding). After coming to power, the NDA government intensified this tussle, trying to get some influence in the decisions by creating the NJAC in 2014.

However, after the NJAC was struck down as unconstitutional by the Supreme Court in 2015, the Centre has adopted a different method to express their displeasure. Since the Memorandum of Procedure for appointment of judges doesn’t allow them a veto (despite their attempts to get this added), but doesn’t specify time limits for them to give their comments, they have found that they can stall the appointment of judges by just sitting on the files and not responding to the Collegium.

They also keep claiming that the MoP is not yet finalised, hence the delays – but this is not entirely true. There are ongoing discussions on the MoP, but till any new document is approved, the old MoP continues to function, as has been clarified by the CJI.

Delays Causing and Worsening Logjam in Courts

The Centre’s refusal to approve appointments and transfers has had severe consequences. The Allahabad High Court, despite having a monstrous pendency of over 7,00,000 cases, was not getting as many judges as it needed – as of 1 February 2018, there were 56 vacancies for judges in the court (14 permanent positions). This figure was also only recently made more respectable, after over a dozen judges were appointed more than a year after their names had been recommended by the Collegium.

IndiaSpend has conducted analysis of the data on judicial appointments that shows that the High Courts nationwide are facing a shortfall of 37% of their approved strengths (permanent and ad hoc) that has left them with 4.2 million pending cases as of 4 February 2018. A staggering 49% of these cases are more than five years old.

The Supreme Court also has a pendency of 55,259 matters (as of 11 November 2017). This is no small matter when you consider that far fewer cases are even supposed to reach them, and the court sits in benches of at least 2 judges, which means it can hear far fewer cases at a time. Justice Chelameswar recently described this backlog of cases as appearing “impossible to clear.” According to him, this problem threatens the very functioning of the Court as an institution.

Stand-off Over Justice KM Joseph Continues

The escalated tensions between the Centre and the Collegium are particularly problematic this year given the large number of retirees. The timeline of retirements is as follows:

1. Justice Amitava Roy – 1/3/2018
2. Justice RK Agrawal – 4/5/2018
3. Justice J Chelameswar – 22/6/2018
4. Justice AK Goel – 6/7/2018
5. CJI Dipak Misra – 2/10/2018
6. Justice Kurian Joseph – 29/11/2018
7. Justice MB Lokur – 30/12/2018

The Supreme Court has previously said that the process of appointing judges must be initiated at least one month before the date of the anticipated vacancy – and yet no replacement has been appointed for Justice Roy.

This is not the fault of the Collegium: on 12 January 2018, they recommended two names be appointed as judges of the Supreme Court. Senior advocate Indu Malhotra was a widely acclaimed choice, and would have become the first lady judge to be elevated directly from the Bar. The second choice, however, has proved to be a massive bone of contention with the Centre: Justice KM Joseph, currently Chief Justice of the Uttarakhand High Court.

Centre’s Ostensible Reasons for Disagreement

The Centre has not officially responded to the Collegium’s recommendations. The Indian Express has reported that the Central Government is trying to argue against appointing Justice Joseph as this would amount to giving “seniority and regional representation a go-by.”

However, neither seniority nor regional representation are hard and fast requirements for the Collegium’s choices. The Second and Third Judges Cases make it clear that if a particular judge is considered meritorious, this can supersede seniority, provided this is specifically recorded in writing. The Collegium’s recommendation for appointing Justice Joseph specifically addresses this as well.

Recent history has also shown that such considerations have not been relevant. CJI Misra, and former CJIs Khehar, Thakur and Sathasivam were not the senior-most High Court judges in the country when elevated to the Supreme Court. The current composition of judges also includes multiple judges from the same state, elevated at the same time.

The Real Reason? And What Impact Will This Have?

The real reason for the Centre’s refusal to accept Justice Joseph’s recommendation is suspected to be the fact that in April 2016, he headed a bench that quashed the imposition of President’s Rule in Uttarakhand, which revived a Congress government headed by Harish Rawat. The Collegium has been standing firm so far on their recommendation, and are expected (according to the Indian Express) to send it back for Presidential assent even if the Centre officially asks them to reconsider. If this happens, the Centre cannot stop his appointment, which is why they have not yet responded.

With this battle going on, it is difficult to see that the judges retiring this year will be replaced anytime soon. It’s only 2 months before the next judge retires, and the stand-off over Justice Joseph is unlikely to be resolved even by then. Having a full complement of 31 judges is even more of a distant dream.

All the while, case pendency is only likely to increase, which will continue to cause hardship to litigators and judges, and potentially irreparable damage to the institution. One can only hope the Government abandons its petty feuding and takes action to prevent this.

Over to you, Hon’ble Minister for Law and Justice, Ravi Shankar Prasad.

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