Image: The Wire
From now until May 13, 2023, the Supreme Court collegium will have six members instead of the usual five-most senior judges, reports Bar and Bench. This arrangement has been made to make space for Justice Sanjiv Khanna, who will be the successor to Chief Justice of India (CJI) D.Y. Chandrachud if seniority is followed.
As per norms and convention, besides CJI DY Chandrachud, the four most senior-most judges – Justices Sanjay Kishan Kaul, S. Abdul Nazeer, K.M. Joseph and M.R. Shah – would have been part of the collegium, which recommends the appointment, transfer and elevation of judges in the higher judiciary.
The entire basis for following the practice of the Supreme Court Collegium are three of the top court’s own judgments, which are collectively known as the Three Judges Cases. In one of the cases, the court had said that the successor CJI should also be part of the Collegium. Therefore, the Collegium’s strength has been raised to six to make space for Justice Khanna. The court stated that “it is desirable that the Collegium should consist of the Chief Justice of India and the four seniormost puisne judges of the Supreme Court.”
The Supreme Court (according to Bar and Bench) qualified this general rule by adding:
“Ordinarily, one of the four senior-most puisne Judges of the Supreme Court would succeed the Chief Justice of India, but if the situation should be such that the successor Chief Justice is not one of the four senior-most puisne Judges, he must invariably be made part of the collegium. The Judges to be appointed will function during his term and it is but right that he should have a hand in their selection.”
The same requirement is reiterated by the law ministry’s Memorandum of Procedure for the appointment of Supreme Court judges. The memorandum says:
“If the successor Chief Justice of India is not one of the four seniormost puisne Judges, he would be made part of the collegium as he should have a hand in the selection of Judges who will function during his term as Chief Justice of India.”
On May 15, 2023, when Justice M.R. Shah will retire, the Collegium will revert to its usual strength of five. Currently, Justice Khanna is the seventh puisne (a judge of a superior court inferior in rank to the chief justice) judge in the top court.
The last time when the collegium had a strength greater than five was during the tenure of the 37th CJI, K.G. Balakrishnan, according to Bar and Bench. Justice Balakrishnan had a long tenure of 3 years and 117 days, taking oath on January 14, 2007. At that time, “there were eight puisne judges (Justices B.N. Agarwal, Ashok Bhan, Arijit Pasayat, B.P. Singh, H.K. Sema, S.B. Sinha, A.R. Lakshmanan and G.P. Mathur) who were senior to Justice S.H. Kapadia, the successor CJI”.
The Bar and Bench report added that since CJI Chandrachud also has a long tenure (two years), the composition of the collegium will undergo many changes during his term.
“At various points during CJI Chandrachud’s tenure, Justices B.R. Gavai, Surya Kant, Hrishikesh Roy, Ajay Rastogi, Aniruddha Bose and A.S. Bopanna will all be members of the Collegium. The last three will retire over the course of this time period,” it said.
By November 2024, when CJI Chandrachud will retire, the collegium will comprise Justices Khanna, Kant, Gavai and Roy – all of whom are set to be elevated as CJIs. After CJI Chandrachud’s retirement, his place in the collegium will be taken by Justice Abhay S. Oka.