'Circulation' to select judges

Collegium turns to never-used method to get around boycott

By Our Legal Correspondent
  • Published 3.11.16

New Delhi, Nov. 2: The Supreme Court collegium has for the first time decided to adopt the "circulation" method for appointing judges, burying the hatchet with one of its members who had been staying away from meetings to press for transparency in selections.

Sources said such a system had become inevitable after Justice J. Chelameshwar on August 26 decided to boycott all meetings of the five-member panel till his call for recording decisions was accepted.

Normally, the judges-only collegium sits together and decides on appointing judges to the top court. The new method - considered unhealthy because it might reflect and record the differences within the panel - means files on transfers and appointments have to be circulated among the members and all five have to give their reasons in writing for approving or rejecting a name.

Justice Chelameshwar had earlier accused the other judges of the collegium of closing ranks to have their way, even if some decisions were questionable.

The collegium stalemate had threatened to disrupt work in the country's highest court, already bogged down with 70,000 pending cases.

The sources said Justice Chelameshwar was now informally participating in collegium discussions, though on his own terms, following a couple of meetings with the Chief Justice of India, T.S. Thakur.

They said files - relating to the elevation of some high court chief justices to the Supreme Court - were being sent to Justice Chelameshwar for consideration after they had been vetted by the other four members.

If Justice Chelameshwar agrees to the names, new judges would soon be elevated to the top court, whose strength would go down to 24 against a sanctioned 31 by January 3 as three judges, including the CJI, would retire by then.

The circulation method is being adopted only for appointments or elevation of judges to the top court, as all the five members of the collegium have to agree on the names proposed and discussed.

For appointments or transfer of judges to the high courts, the CJI and two senior-most apex court judges make up the three-member collegium. Justice Chelameshwar's presence is not required now for considering these names.

But the judge, the fifth in the collegium hierarchy for appointments to the top court, will jump to the third position after January 3, when Chief Justice Thakur demits office. By then, the second senior-most judge, Justice A.R. Dave, whose tenure ends later this month, would have retired too.

This means that from January 4, Justice Chelameshwar's presence would become mandatory not only for appointing judges to the Supreme Court but also to the various high courts that are over 250 judges short now.

Another apex court judge, Justice Shiva Kirti Singh, who is not part of the collegium, retires on November 18 this year.

Justice Chelameshwar, who is due to retire in June 2018, was the sole dissenting judge on the five-judge constitution bench that had last year struck down the National Judicial Appointments Commission.

The NJAC had sought a say for the law minister in the appointment and transfer of judges.