With his retirement due in just over a month, Chief Justice of India SA Bobde is likely to be the first CJI since 2015 who did not make a single appointment to the Supreme Court. The collegium he heads to appoint his colleagues has not made any recommendations in the 13 months since he took office. This lack of urgency was in spite of the fact that the top court last appointed a judge in September 2019 and currently has four vacancies, with five more expected this year. This impasse also comes at a time when high courts across the country are short of over 400 judges and the judicial system has been struggling to keep pace since the COVID-19 pandemic. The restricted functioning of the judiciary for over a year has increased the burden on the institution to protect the rights of citizens and keep government in check.
Five years ago, when the Supreme Court struck down the National Judicial Appointments Commission, the restatement of its faith in the collegium system of appointing judges to the higher judiciary was accompanied by a promise of transparency and efficiency. The fact that the issue of appointment of judges has been taken up on the judicial side by every CJI since then, hauling up government law officers on why names have not been cleared, to no ostensible effect, shows the lack of efficiency in the process. In a hearing on January 27, a three-judge bench headed by CJI Bobde asked the Centre whether there was a timeline for government clearance of recommendations made for high courts. During the hearing, the bench also questioned other high courts on the working of the collegium at the high court level — the number of times it met and why the number of recommendations did not correspond to the number of vacancies, although the same can be asked of the apex court too. Incremental reforms on transparency, such as the practice of disclosing the reasons while announcing the collegium’s decision, introduced in 2017, were quickly rolled back without any explanation. Now, the collegium only puts out a public statement on who it has recommended but does not disclose who dropped out.
The hearing to address delay in appointments has resulted only in an unseemly blame-game between the government and the collegium through sworn affidavits on who caused more delay in the process. Institutional reform of the judiciary cannot be any one chief justice’s burden, but every chief justice has allowed the court to slide back on transparency and efficiency. If CJI Bobde retires without a successful collegium meeting, the compulsions that lie behind this apparent incapacity of a vital institution must be made known.
