How long does the office of a Chief Justice of a High Court remain vacant after the incumbent retires or is elevated to the Supreme Court?
Last week, the appointment of Delhi High Court Chief Justice Satish Chandra Sharma; Rajasthan High Court Chief Justice Augustine George Masih, and Gauhati High Court Chief Justice Sandeep Mehta to the Supreme Court took the court to its full sanctioned strength of 34 judges.
However, with three new judges appointed to the Supreme Court last week, the Collegium headed by Chief Justice of India DY Chandrachud will now have to recommend three new Chief Justices for appointment.
Till new CJs are appointed the High Courts will function under an Acting Chief Justice – the senior most judge of that High Court.
The Indian Express looked at the last 24 appointments of Chief Justices to find out how long it took for the Collegium to fill the office of Chief Justice when a vacancy arises.
Of the 24 recommendations made between 7 February and 2 November – Nine vacancies arose when incumbent CJs were elevated to the Supreme Court and 14 vacancies came up due to the retirement of incumbent CJs.
It takes the Collegium an average of 44 days to recommend a new CJ after the incumbent has retired.
A vacancy that arises from an incumbent CJ’s retirement is more certain than when a CJ is elevated since judges of High Courts are constitutionally mandated to retire at the age of 62 years. In theses 14 instances of vacancies arising out of retirements, the Collegium had on only three occasions recommended a new CJ before one’s predecessor retired.
For instance, on July 5, the Collegium recommended Justice Subhasis Talapatra as Chief Justice of Orissa High Court since a vacancy would have arisen when then CJ of Orissa High Court Justice S Muralidhar retired on August 7. It also helped that Justice Talapatra had only two months to retire.
Another instance was when the Collegium on February 9, recommended Justice T S Sivagnanam as Chief Justice of the Calcutta High Court, 49 days before the incumbent Chief Justice Prakash Srivastava was due to retire. It helped that Justice Sivagnanam was already the second-seniormost judge in the Calcutta HC since his transfer in October 2021.
However, when a sitting Chief Justice of a High Court is elevated to the Supreme Court, it takes the Collegium longer, i.e. 57 days, to recommend the appointment of a new Chief Justice.
The date on which a CJ is recommended for appointment by the Collegium is taken as the date on which the vacancy arises, rather than the date on which the government makes the appointment since the government could delay the appointment. Of the 10 such recommendations, the Collegium on only two occasions recommended a new CJ for the HC on the same day it recommended the incumbent for elevation to SC – when it recommended Justices Ujjal Bhuyan and SV Bhatti to SC on July 5.
While Justice Bhuyan was CJ of Telangana High Court at that time, Justice Bhatti was CJ of the Kerala High Court.
An Acting Chief Justice’s tenure is uncertain and impacts administrative tasks of the office- including functioning of the High Court Collegium. In 2021, both the Centre and SC Collegium had returned 18 names recommended by then Bombay High Court Chief Justice BP Dharmadhikari. The Centre’s objection was that Justice Dharmadhikari had a short stint- as Acting Chief Justice and Chief Justice-of just over two months. The Bombay High Court then sent a fresh list of 10 advocates.