Vacancies, MoP uncertainty stare at SC

Supreme Court faces shortage of Judges

Jan 01

Vacancies, MoP uncertainty stare at SC


  • With six vacant posts already, the Supreme Court seems to be staring at a crisis as seven more judges will retire in 2018.

Setback in the appointment

  • The vacancies remain unfilled, but there seems to be no end to the prolonged stalemate between the Supreme Court Collegium and the government over finalising a Memorandum of Procedure (MoP) to appoint judges to the apex court and the High Courts.
  • No thaw is in sight on the MoP ever since the National Judicial Appointments Commission was declared unconstitutional by a Constitution Bench of the Supreme Court in October 2015.

NJAC – Unconstitutional

  • The panel was a brainchild of the National Democratic Alliance government, and Parliament had passed a Bill unanimously to form it.
  • Shortly after striking down the panel, which gave the political class an equal say in judicial appointments, the Constitution Bench asked the government to take the initiative to draft the MoP.
  • This separate judgment came in December 2015 after the court had taken public opinion and agreed that the Collegium system needed improvement.

Points of difference

  • Union Minister of State for Law and Justice P.P. Chaudhary recently apprised Parliament of the trajectory of the to-and-fro between the Law Ministry and the Collegium over the MoP. The first draft of the MoP was sent to the court on March 22, 2016. It replied on May 25 and July 1 that year.
  • The government highlighted the need for transparency, a separate secretariat, eligibility criteria and mechanism to deal with complaints on August 3. The Collegium sent its finalised proposal on the draft on March 13, 2017, rejecting the idea of a government veto on names recommended by the Collegium on grounds of national security.
  • As the differences over the MoP continues, there seems to be no move to fill the six vacancies in the Supreme Court, which has 25 judges against the full strength of 31. However, seven more crucial vacancies are imminent. Of the seven retiring judges, four are part of the Collegium, meaning the body will see a drastic, if not complete, overhaul in 2018.
  • Chief Justice of India Dipak Misra and Justices J. Chelameswar, Madan B. Lokur and Kurian Joseph — all part of the five-member Collegium — are due to retire in 2018. Justice Ranjan Gogoi, the current Judge Three, is in line to be Chief Justice in October 2018.

HCs in need

  • Besides, nine High Courts are functioning with Acting Chief Justices. The government informed Parliament that it had “not received any proposal for filling six vacancies of judges in the Supreme Court and for appointment of Chief Justices in the nine High Courts which are functioning with acting Chief Justices”.

Appointments made

  • During 2016, four judges were appointed in the Supreme Court and 14 Chief Justices in the High Courts, Mr. Chaudhary replied to a question in Parliament.
  • Besides, 126 fresh appointments of judges were made in the High Courts, which is the highest in a calendar year. During 2017, as on December 19, five judges in the Supreme Court, eight Chief Justices of the High Courts and 115 fresh judges in the High Courts have been appointed, he said.
  • There are 395 vacancies across 24 High Courts and 5,984 judicial vacancies in the subordinate judiciary.


Memorandum of Procedure

  • It is process under which Judges of Supreme Court and High Court appointed.


National Judicial Appointment Commission

  • The National Judicial Appointments Commission (NJAC) is a constitutional body proposed to replace the present Collegium system of appointing judges.
  • The Supreme Court rejected the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment which sought to give politicians and civil society a final say in the appointment of judges to the highest courts.


Key words

  • Supreme Court Collegium
  • Memorandum of Procedure (MoP)
  • National Judicial Appointments Commission
  • Acting Chief Justices