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Why neo-collegium hearings will be held up over CJI change-over

In the midst of the melee in Court 4 on 5 November before the constitution bench hearing the proposals on reforming the collegium, counsel arguing for and against the brief adjournment, missed a crucial fact: the present collegium headed by the outgoing CJI, Justice HL Dattu, is unlikely to meet to recommend the names of new Judges, in view of Dattu’s recommendation to the government to elevate the senior-most of his colleagues, Justice TS Thakur, as the CJI, after his retirement on 2 December.

Fali Nariman made a passionate plea to the bench not to hold up the collegium meetings on the ground that the neo-collegium hearing was inconclusive, in view of the large number of vacancies in the high courts.

According to him, suggestions for reform are an ongoing affair, and therefore, the mechanism which has been working all these years need not come to a grinding halt, just because the bench is likely to lay down fresh guidelines.

Gopal Subramanium, on the other hand, argued that the bench should finish the hearing early, without any adjournment, so that the collegium does not come under pressure to recommend names for Judges, without having to follow the new guidelines. Indeed, his point appeared valid, because Judges so appointed before the bench could lay down fresh guidelines, would lack credibility in view of the intense criticism levelled against the collegium’s style of functioning all these years.

Justice Khehar, however, held the view that whether the collegium could meet or not during the interregnum of the hearings on neo-Collegium is best left to the Collegium itself, although he himself is a member of the collegium, by virtue of being the fourth senior-most judge of the Supreme Court.

Perhaps Justice Khehar implied that the collegium might not meet at all during this interregnum because of the imminent succession of the CJI on 2 December.

This is because of the propriety followed by the collegium that once the current CJI recommends to the government to appoint the next CJI, the outgoing CJI avoids calling the collegium meetings, as he becomes lame-duck, and recommendations regarding the future Judges are at best deferred as a mark of respect to the successor CJI, and the new member, who is likely to join the Collegium to fill the vacancy created by the outgoing CJI

This propriety or the convention, thus came as a blessing in disguise for the bench to accept a brief adjournment till 18 November, and use the interim period to satisfy the many pleas from other stake-holders that their voices also be heard before the bench finalised the guidelines for reforming collegium, as evident in this [notice.

Doubtless, it would mean further delay in filling the vacancies, but the bench found this inevitable, if only to avoid the criticism of being elitist, and not being open to suggestions from common man. In all likelihood, the new guidelines for neo-Collegium will be laid down by the bench well before 2 December, before the next CJI takes over. The guidelines may be mainly drawn from the common list, drawn by the joint report of Pinky Anand and Arvind Datar despite the opportunity given to the public to make their suggestions here.

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