Chief Justice of India TS Thakur wrote to the government on Tuesday recommending the name of Justice JS Khehar as his successor.
Justice Khehar will be sworn in as the head of Indian judiciary on January 4, 2017, a day after Justice Thakur demits office. First Sikh to be India’s Chief Justice, Justice Khehar will hold the post till August 28, 2017. He will be the 44th CJI.
His appointment comes at a time when the judiciary and executive have failed to arrive at a consensus over the new procedure to appoint judges. Both have been at loggerheads since the October 2015 judgement when the apex court struck down the controversial National Judicial Appointments Commission (NJAC) Act, brought in to end decades-old collegium system where judges appointed judges, an opaque process unique to India.
Justice Khehar headed the five-judge bench that ruled the new law impeached judicial independence. However, the court had asked the government to frame a new memorandum of procedure (MoP) – under which judges are hired – in consultation with the SC collegium headed by the CJI and comprising the top four judges after him. Justice Khehar is a member of the collegium.
But, the MoP continues to be a bone of contention between the two. Judiciary seems to be opposed to two suggestions the government has made – one giving executive the power to decline a recommendation to appoint a judge on the ground of national security and the other to set-up a secretariat that will assist the SC collegium to scrutinize the applicants.
Sources said although the collegium members strongly opposed the last say to the executive, there was a difference on opinion among them on having a secretariat. “It’s possible that Justice Khehar is able to work out a solution since the new collegium headed by him will consist atleast three judges, including him, who heard the NJAC case and later asked the government to alter the MoP,” the source said.
Justice Khehar, who also led the bench that struck down President’s Rule in Arunachal Pradesh and ordered restoration of the Congress government dismissed by the NDA government, bears the burden to fill vacancies in the top court. SC is working with 24 judges as against the sanctioned strength of 31.
The collegium could not proceed with the appointments since Justice J Chelameswar, one of the members, rebelled against the non-transparency in the system. He refused to participate in the meetings and insisted minutes of discussion be recorded.
Justice Khehar also faces an uphill task to hire judges for various high courts facing severe manpower shortage. But, the immediate challenge Justice Khehar faces is regarding the appointment of 43 judges on which the government had raised objections.
The files were returned to the collegium, which in November first week reiterated its recommendation. However, government sources said the files could be returned again after Justice Khehar takes over as the CJI.
Justice Khehar became a judge with the Punjab and Haryana high court on February 8, 1999. He was elevated as the Chief Justice of Uttarakhand high court on November 29, 2009 and was later transferred to head the Karnataka high court. He was also nominated as a member of the Judges Inquiry Committee against Justice PD Dinakaran, constituted following allegations of corruption against the former judge. Justice Khehar was appointed as a judge to the apex court on September 13, 2011.