The Supreme Court faces a crisis of sorts as its present judge strength has depleted below the numbers sanctioned more than a decade ago and the situation could worsen in future with no urgent steps being taken by the five-member Collegium led by Chief Justice S A Bobde to fill the vacancies.
The sanctioned strength of SC Judges was increased from 26 to 31, including the CJI, in 2009, but its present strength is 30 Judges. With five more retirements – Justice Indu Malhotra (March 13), CJI Bobde (April 23), Justices Ashok Bhushan (July 4), R F Nariman (August 12) and Navin Sinha (August 18) – scheduled in the next six months, the strength could deplete below 1988 level, when it was increased from 18 to 26. The number of SC judges was increased from 31 to 34 in 2019.
After retirement of Justice Arun Mishra on September 2 last year, there has been no meeting of the five-member Collegium comprising CJI Bobde, Justices N V Ramana, R F Nariman, U U Lalit and A M Khanwilkar for selecting persons from among HC chief justices, Judges or lawyers for appointment as SC Judge. Last to be appointed as SC Judge was Justice Hrishikesh Roy on September 23, 2019, nearly 18 months ago.
SC sources told TOI that “Since August, there had been no Collegium meeting. No names have been discussed informally among Judges. Circulation of names which are purportedly under consideration of the Collegium is mere speculations.”
The Collegium is endeavouring to induct more women judges in the SC, which once had four of them. However, with Justice Malhotra’s scheduled retirement on March 13, Justice Indira Banerjee would be the lone woman judge in SC.
If the SC Collegium in its meeting takes up this issue, those who would be in the zone of consideration are Justice Hima Kohli, chief justice of Telangana HC, Justice Sanju Panda of Orissa HC and Justice B V Nagarathna of Karnataka HC.
Justice Kohli was appointed a Judge of Delhi HC on May 29, 2006, Justice Panda in 2007 and Justice Nagarathna, daughter of former CJI E S Venkataramiah, was appointed to Karnataka HC on February 18, 2008. Justice Kohli is the senior most among women Judges in India. Justice Nagarathna, the third most senior judge, is 33rd in the all India seniority list of HC Judges.
Justices Kohli and Nagarathna face the same impediment – too many from their parent HCs are sitting judges in the SC. Both Delhi and Karnataka already have three Judges each in SC. The elevation of Justices Kohli and Nagarathna could breach the informal understanding for a balanced representation to the states in the SC to cater to regional aspirations.
However, SC sources said that both could be considered for appointment as SC Judges and if it happens, then Justice Nagarathna could become the first woman CJI as she is just 59-year-old now.
However, if another male Judge, younger to her, is elevated priorly, then she could lose the opportunity to head the judiciary after Justice Surya Kant, who retires in February 2027 after more than a year as CJI.
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