The Supreme Court collegium's new list of recommendations for appointments to the top court has created a host of headlines.
It began with news that there was a chance for the first ever woman Chief Justice of India.
Followed by current CJI NV Ramana saying he was "extremely upset" with "irresponsible reporting and speculation" about the recommendations, even though the list finally put out by the collegium was exactly the same.
And now the conversation has moved to the 'message' sent by the failure to include on the list, a senior, well-respected judge like Justice Akil Kureshi.
But how should we really look at the list?
Should we welcome the news that three women judges could join the court? Should we be concerned about 'capitulation' by the Supreme Court to the Centre? Or should we instead applaud the pragmatism of CJI Ramana and the collegium in filling the apex court's mounting vacancies?
The Good: An Attempt to Address the Inexplicable Gender Skew (Is It Really Though?)
There is certainly some good news to be found in the list: three women judges, who would (if appointed) include India's first woman Chief Justice of India, Justice BV Nagarathna. The other two judges are Telangana High Court Chief Justice Hima Kohli and the Gujarat High Court's Justice Bela Trivedi.
The disparity in gender representation at India's courts is, quite frankly, shocking. There is only one woman judge at the Supreme Court of India at present (Justice Indira Banerjee), and there have only been eight since 1989, when Justice Fathima Beevi became the first.
Of the 653 sitting judges of the high courts, only 78 are women (barely 12 percent). In the lower courts, only around 30 percent of judges are women.
Having three women judges in the new list of nine recommendations by the collegium is therefore most welcome.
At the same time, as a retired woman high court judge points out, we have to acknowledge this still means that if the appointments do come through, even then, only four out of 33 Supreme Court judges will be women.
Looked at that way, the news doesn't look quite so impressive. Sure, appointments should ideally only be about merit, but is the current representation of women in the apex court really an indication of merit?
There are deeper systemic reasons for this skew in representation at the court (hint: it starts with a P, ends with a Y, and infests our society as a whole), and it's important not to get carried away with the few bits of good news that come in.
The Bad: What About Justices Akil Kureshi & S Muralidhar?
"It reflects poorly on this great Institution that it ignored two of the best and senior most Judges in a cavalier fashion," says senior advocate Dushyant Dave, a former president of the Supreme Court Bar Association.
Dave is speaking, of course, about the fact that the list of potential candidates recommended by the collegium does not include Tripura Chief Justice Akil Kureshi, and Justice S Muralidhar (currently at the Orissa High Court).
The failure to recommend Justice Kureshi was a controversy waiting to happen, given he is second in terms of seniority among high court judges in the country.
And, of course, given the ugly controversy from 2019, when the collegium changed its recommendation to appoint him as Chief Justice of the Madhya Pradesh High Court after the Centre objected to this.
The Gujarat High Court Bar Association had previously challenged the Modi government's failure to act on the collegium's original recommendation, noting that this appeared to be a vendetta over two of Justice Kureshi's orders as a judge at the Gujarat High Court.
In 2010, Kureshi had sent Amit Shah into police custody for two days in the Sohrabuddin Sheikh fake encounter case, and in 2012, he had upheld the Gujarat Governor's decision to appoint a Lokayukta in the state after the then Modi led state government's failure to do so for eight years.
"I wish Justice Kureshi had been appointed," says Justice Deepak Gupta (who retired from the Supreme Court in late 2020), observing that the Tripura Chief Justice had a great reputation as a jurist and as a person. Two other retired high court judges also expressed their dismay that a judge who is so highly respected – let alone senior – has been superseded.
The issue is clearly not just of seniority. Seniority (not in terms of age, but time spent as a judge of a high court) is one of the key factors to be considered when deciding whether to appoint someone as a Supreme Court judge, according to its own judgments in the Second and Third Judges Cases (from 1993 and 1998). On this count itself, Justice Kureshi was an excellent pick.
However, even when considering the other relevant factors – merit and regional representation – Justice Akil Kureshi's non-elevation has caused consternation. The court has recommended Justice Bela Trivedi among its nine judges, so having Gujarat as a parent high court is obviously not an issue.
In terms of merit, Justice Kureshi's record shows he was not only willing to maintain the independence of the judiciary (as his rulings in Gujarat show), but also stand up for fundamental rights. In several rulings at the Tripura High Court, he has ruled in favour of citizens arrested for exercising their right to free speech online, including government servants.
"The collegium is duty bound to select the best from amongst those available, not ignore the legitimate expectations of those eligible and has the absolute right to force the government to accept its recommendations second time around, if the government rejects the first," argues Dushyant Dave.
Similar concerns have been raised about the failure to recommend Justice Muralidhar. Not only is he highly regarded – from striking down Section 377 back in 2009, to passing much needed orders to save lives during the Delhi Riots in February 2020 – he is also reasonably high on the seniority list, having been appointed as a high court judge way back in 2006.
Again, representation is evidently not an issue, as Telangana High Court Chief Justice Hima Kohli, who is junior to him in terms of tenure at their parent Delhi High Court, is on the list of recommendations.
Instead, there is concern among retired judges and lawyers that it is once again the government's unfavourable attitude towards him that is the reason for him not being on the list.
Remember that he ordered the Delhi Police to take a call on FIRs against BJP leaders Kapil Mishra, Anurag Thakur and Parvesh Verma for their speeches in the build up to the 2020 Delhi riots, having even played some of those speeches in court. That very evening, the President notified his transfer to the Punjab & Haryana High Court, meaning he could no longer hear those matters.
Unlike in Justice Kureshi's case, there is still at least some chance that Justice Muralidhar could yet be elevated to the Supreme Court, as he has another two years before he retires (Justice Kureshi only has another 6 months or so), senior advocate Sanjay Hegde points out.
Even if all nine new recommendations go through, there is still one more vacancy at the Supreme Court already at this time, following Justice Navin Sinha's retirement on 18 August, and more will come up over the next year.
However, with three Supreme Court judges already from the Delhi High Court (four, if Justice Hima Kohli is elevated) who will not retire till after Justice Muralidhar reaches the HC retirement age of 62, the chances of this look quite slim.
There are other judges who have been superseded to come up with the final list, as well, in terms of seniority, but to much less controversy. These include Kerala HC Chief Justice S Mani Kumar, Himachal Pradesh HC Acting Chief Justice Vijay Kumar Malimath, and Punjab & Haryana HC Chief Justice Ravi Shanker Jha, and even Delhi HC Chief Justice DN Patel.
The Ugly: Capitulation or Pragmatism?
There is a significant elephant in the room when it comes to this new list though: the fact it was cleared barely five days after Justice Rohinton Nariman retired.
That's because Justice Nariman, as a member of the Supreme Court collegium, had resolutely refused to clear any list of recommendations unless they included Justice Akil Kureshi.
This is reportedly the reason why there had been no appointments to the Supreme Court during former CJI SA Bobde's 17 month tenure, or in the four months since.
While the inclusion of Justice Kureshi on the list would no doubt have led to objections from the Centre, Dushyant Dave believes the collegium folded without even getting to that point, and the way it has done so, is something to be concerned about.
"The collegium capitulated even before confrontation. It chose the easy path compromising their constitutional oath and ignoring the Constitution Bench judgement on appointments to High Courts and the Supreme Court. It doesn’t augur well for the institution and for the country."Senior advocate Dushyant Dave
Dave is referring to the Third Judges Case here, which clearly set out how the collegium's assessment of a judge's merit was of greatest importance. If the collegium recommends a candidate to be appointed to the Supreme Court and the Centre raises objections, the collegium can reiterate the recommendation, after which, the Centre is bound to follow it.
Unfortunately, as became evident after the Supreme Court struck down the Modi government's plan for a National Judicial Appointments Commission in 2015, there is a loophole in that system: there is no deadline for the Centre to comply with even the reiterated recommendations from the collegium.
The central government could just sit on the files for months on end, thereby exacerbating the vacancies at the court, all because it doesn't like the cut of one of the candidate's jib.
Sanjay Hegde believes that the collegium took a decision that would allow it to operate properly after a prolonged period without being full strength.
"The Supreme Court as an institution probably did what Supreme Court lawyers often do: not advance a submission which was likely to be rejected. They may have wanted to send at least one batch of recommendations where the government is less likely to have problems so that at least they would have a certain amount of judges in place – they were currently operating without almost a third of their strength."Senior advocate Sanjay Hegde
A retired Supreme Court judge also suggested that Justice Nariman's approach, while justified on principle, had not necessarily been in the interests of the Supreme Court's efficient functioning.
At the same time, they acknowledged that not including Justice Kureshi on the list had significant undertones: not just because of merit and seniority and his willingness to stand up to Amit Shah and Modi, but also the fact that he would have been the first Muslim candidate for the Supreme Court in some time. Like Dave, they are therefore concerned about the way this will reflect on the institution.
Even so, they were still enthused about the nine judges on the list, and believe they will be valuable additions to the court despite the snub to Justice Kureshi.
Another retired high court judge points out that pragmatism can only go so far to address problems with administration of the Supreme Court. Even though these judges will fill the vacancies at the court and are generally well-regarded, their appointments will also continue to mean fragmented, short tenures for CJIs of the court after 2024. Justice Nagarathna's tenure as CJI, for instance, while no doubt historic, will only last little over a month.
The pragmatism also doesn't really see any real development made on representation.
Dalit representation at the court remains dismal (same for adivasi representation: just about one judge from each community, while upper caste men dominate the make up), and several regional high courts continue to have no representation whatsoever, from Jammu and Kashmir to Patna to the north eastern states (apart from Assam).
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