Despite the reservations of at least two of his colleagues, outgoing Chief Justice of India S A Bobde held a meeting of the collegium Thursday, with just two weeks to go to his retirement, to discuss appointments to the Supreme Court. The meeting ended in a deadlock, without a consensus on making any recommendation. The shadow of mistrust between the members of the collegium headed by CJI Bobde exposes the faultlines within the judiciary. This comes at a time when the process of appointment needs to be initiated for at least five judges, with four more, including CJI Bobde, retiring this year. CJI Bobde will perhaps be the first chief justice to have not made even a single recommendation for appointment as SC judge.
The appointment of judges has seen sparring between the executive and the judiciary, which should be resolved through constitutional channels. The Supreme Court is currently hearing a case on appointment of judges to high courts in which it has asked the government to expedite the matter. In response, the government forwarded over 45 names that were pending with it, for collecting intelligence inputs on candidates. However, when the sparring is within the collegium — a system designed by the judges themselves — the resolution has to come from within. This impasse within the collegium, which has continued throughout CJI Bobde’s 14-month tenure, shows that the lack of faith amongst colleagues on the bench runs deep. While the collegium for appointing judges to the high court — which comprises the CJI and two senior-most judges — continues to meet and function, in 16 months there has been no recommendation sent to the government for the Supreme Court.
This has a chance to change on April 23 when CJI Bobde retires and Justice N V Ramana takes over. While the 14-month impasse has highlighted the constraints that CJI Bobde worked with, it also underlines the challenges for his successor. The collegium headed by him will have four colleagues from Bombay, including Justices U U Lalit and D Y Chandrachud — two future chief justices. As head of the collegium, the CJI has the same vote as other members. The onus is on each of them to ensure that the stalemate ends. The collegium members have to make a fresh start and engage with each other. A transparent process adds accountability that is much needed to resolve the deadlock. Individual disagreements over certain names will continue to take place, but care must be taken that the institutional imperative of dispensation of justice does not suffer.