The story so far: The Chief Justice of India (CJI) N.V. Ramana’s tenure is drawing to an end in a few days. The Ramana Collegium has been particularly successful. Meeting frequently and working quickly, they took the perennial problem of judicial vacancies by its horns and turned it around. The collegium, as a united front, was able to recommend numerous judicial appointments and scripted history by getting nine Supreme Court judges appointed in one go. Of the nine, Justice B.V. Nagarathna, is in line to be the first woman CJI in 2027.
The collegium system was born out of years of friction between the judiciary and the executive. The hostility was further accentuated by instances of court-packing (the practice of changing the composition of judges in a court), mass transfer of high court judges and two supersessions to the office of the CJI in the 1970s.
The Three Judges cases saw the evolution of the collegium system. In the First Judges case, the court held that the consultation with the CJI should be “full and effective”. The Second Judges case introduced the collegium system in 1993. It ruled that the CJI would have to consult a collegium of his two senior-most judges in the apex court on judicial appointments. The court held that such a “collective opinion” of the collegium would have primacy over the government. It was the Third Judges case in 1998, which was a Presidential reference, that expanded the judicial collegium to its present composition of the CJI and four of his senior-most judges.
The collegium of the CJI and four senior-most judges of the Supreme Court make recommendations for appointments to the apex court and High Courts. The collegium can veto the government if the names are sent back by the latter for reconsideration. The basic tenet behind the collegium system is that the judiciary should have primacy over the government in matters of appointments and transfers in order to remain independent. However, over time, the collegium system has attracted criticism, even from within the judicial institution, for its lack of transparency. It has even been accused of nepotism. The government’s efforts to amend the Constitution and bring a National Judicial Appointments Commission was struck down by a Constitution Bench.
The appointment of the CJI and judges of the apex court is governed by a Memorandum of Procedure. The CJI and the judges of the Supreme Court are appointed by the President under clause (2) of Article 124 of the Constitution. The appointment to the office of the CJI should be of the senior-most judge of the Supreme Court considered fit to hold the office. The Union Law Minister would, at an “appropriate time”, seek the recommendation of the outgoing CJI on his successor. Once the CJI recommends, the Law Minister forwards the communication to the Prime Minister who would advise the President on the appointment.
In the case of an appointment of a Supreme Court judge, when a vacancy is expected to arise in the apex court, the collegium would recommend a candidate to the Union Law Minister. The CJI would also ascertain the views of the senior-most judges in the Supreme Court, who hail from the High Court from where the person recommended comes from. The opinions of each member of the Collegium and other judges consulted should be made in writing and form part of the file on the candidate sent to the government. If the CJI had consulted non-judges, he should make a memorandum containing the substance of consultation, which would also be part of the file. After the receipt of the Collegium recommendation, the Law Minister would forward it to the Prime Minister, who would advise the President in the matter of appointment.
The increase in the number of judges has not guaranteed lower pendency of cases in the apex court over the years. The number of pending cases has risen to 71,411 as on August 1, 2022 from a little over 55,000 in 2017. This is despite the fact that the sanctioned judicial strength of the court was increased to 34 judges in August 2019. A steady rise in arrears regardless of the periodic increase in judicial strength has been a constant phenomenon since 1950.
In 1950, the Supreme Court had eight judges and a pendency of 100-plus cases. A decade later, in 1960, the judges’ strength in the Supreme Court grew to 14 while pendency rose to 3,247. In 1978, the number of apex court judges was 18 and pendency had crossed the 14,000-mark. In 1986, there were 26 judges in the Supreme Court while pendency increased to 27,881. In 2009, the number of judges in the Supreme Court reached 31 though pendency went beyond 50,000. In 2014, the number of judges remained 31 but pendency had burgeoned to over 64,000. In 2020 and 2021, the pandemic added to the pendency rate in the apex court. The year 2020 ended with a backlog of 64,426 cases and 2021 with 69,855 cases.
The court currently has 31 working judges. Four serving judges, including Chief Justice Ramana, would retire in the next few months. His successor Justice U.U. Lalit, is scheduled to retire in November 8, with hardly a three-month tenure as top judge. Justice D.Y. Chandrachud is in line as per the seniority norm to be the 50th CJI Chief Justice in November. The problems of arrears and vacancies in the apex court may likely fall on his shoulders in a year of churn.