The Chief Justice of India U.U. Lalit-led collegium may not be able to recommend any name to the Centre for filling up four vacant Supreme Court judges' posts, as the deadlock over the proposal to recommend new judges continues.
It is learnt that two of the five-member apex court collegium have opposed the proposal to recommend four new judges, which includes an apex court lawyer, to the top court through a written note instead of a formal meeting.
Chief Justice Lalit is slated to retire on November 8, and the apex court is scheduled to reopen on October 10, by which the less than one-month-rule - in which an outgoing CJI cannot make any recommendation if the length of his remaining tenure is less than a month - would kick in.
According to sources, the two judges who have opposed to the written proposal to recommend judges for the appointment to the apex court are of firm view that holding a collegium meeting by circulation of proposal, instead of a face-to-face discussion, is not heard of.
The Chief Justice of India, who heads the collegium, had written to its four members Justices D.Y. Chandrachud, S.K. Kaul, S. Abdul Nazeer, and K.M. Joseph -- earlier this month seeking their consent for the elevation of Punjab and Haryana High Court Chief Justice Ravi Shankar Jha, Patna High Court Chief Justice Sanjay Karol, Manipur High Court Chief Justice P.V. Sanjay Kumar, and senior advocate K.V. Viswanathan.
One of the collegium members had said that he has no objection to the CJI's proposal. However, two judges maintained that decision over names of judges for the appointment to the apex court cannot be done by circulating a proposal.
The one-month rule will not allow Chief Justice Lalit to hold a collegium meeting after October 8 - while the apex court will reopen two days later. The CJI circulated a written proposal after a collegium meeting scheduled on September 30, the last working day before the Dussehra holiday, could not take place as Justice Chandrachud heard cases past 9 p.m.
As per the convention, the government writes to the outgoing CJI to nominate his successor and the CJI recommends the name of the most senior judge, a month before retirement. After the name is recommended, the incumbent CJI usually does not take decision on the recommendation for the appointment of new judges, and leaves it for the new CJI.
So far, the collegium, headed by CJI Lalit, has recommended elevation of Bombay High Court Chief Justice Dipankar Dutta as judge of the apex court.
A statement, uploaded on the apex court website, said: "The Supreme Court Collegium in its meeting held on 26th September, 2022 has recommended elevation of Justice Dipankar Datta, Chief Justice of Bombay High Court (PHC: Calcutta), as Judge of the Supreme Court". Justice Dutta's parent high court is the Calcutta High Court.
At present, the apex court is functioning with 29 judges as against the sanctioned strength of 34 judges.