As of 22 May 2019, the Supreme Court (SC) has been at its full strength of 31 judges. Until the next retirement, we shouldn’t see any disagreements between the SC and Centre over the elevation of SC judges. However, the next retirement is just three months away.

 

Justice AM Sapre and Chief Justice R Gogoi will both retire in 2019:

  1. Justice AM Sapre on 27.08.2019
  2. Chief Justice R Gogoi on 17.11.2019
  3. Justice D Gupta on 06.05.2020
  4. Justice R Banumathi on 19.07.2020
  5. Justice A Mishra on 02.09.2020

 

Currently, the SC has the ultimate power to appoint judges, under the Collegium system. The Collegium comprises the Chief Justice and the four senior most Justices. After deciding which judge to elevate, it sends a recommendation to the Law Ministry. While the Law Ministry can ask the Collegium to reconsider the recommendation, it cannot veto it. If the Collegium chooses to reiterate its recommendation, it becomes binding on the government.

 

In the past 5 years, the Law Ministry has repeatedly sent back Collegium recommendations. In 2014, it sent back Senior Advocate Gopal Subramanium’s name. Subsequently, he withdrew his name in June, under the pressure of media reports linking him to corporate lobbyist Nira Radia.

 

In 2018, the Ministry asked the Collegium to reconsider Justice KM Joseph’s elevation, citing the need for ‘fair representation’. After deferring on three separate occasions, the Collegium finally pushed through his elevation 6 months after the initial recommendation.

 

More recently, in April 2019, the Ministry returned Justices A Bose and AS Bopanna’s names. The Collegium reiterated their names one month later, holding that merit trumps seniority.

 

This trend of the Ministry returning recommendations looks set to continue. On 2 June 2019, Law Minister Ravi Shankar Prasad stated that he ‘will not be a post office’ for the Collegium. Given that the Collegium has not withdrawn any of its recent recommendations, how should we interpret Mr. Prasad’s comments? Will the Ministry seek to do more than just send back names?

 

The Government could attempt to introduce the equivalent of a National Judicial Appointments Commission (NJAC). In 2015, NJAC would have replaced the Collegium with a body comprising both judges and non-judges: Chief Justice, 2 senior most Justices, Law Minister, 2 eminent persons (nominated by CJI, PM and LoP). However, a 4:1 majority of the Supreme Court declared NJAC unconstitutional by holding that it would infringe upon the independence of the judiciary. Given that the current government has a single party majority, it may attempt to once again amend the Constitution.

 

Alternatively, the Government could amend the Memorandum of Procedure (MoP), which dictates the appointment of judges. The MoP flows from Article 124 of the Constitution, which states that the President shall appoint Supreme Court judges in consultation with the appropriate Supreme Court and High Court Justices. The MoP is still under revision by the Collegium and Ministry. Hence, amending the MoP may offer a path of less resistance.

 

With two schedule retirements in 2019 and three in 2020, the Collegium system is set to once again come under the limelight. How aggressive of a stance will Union Minister Ravi Shankar Prasad take?