The Supreme Court collegium, consisting of five senior-most judges of the Supreme Court, including Chief Justice Dipak Misra, on Friday in principle agreed to reiterate the elevation of Uttarakhand Chief Justice KM Joseph to the Supreme Court.

However, the collegium’s resolution said that this reiteration would be done along with recommendations of others names for elevation to the top court. This means collegium will again meet on May 16 to deliberate the names apart from Joseph’s to send to the Union government.

However, there is an interesting sub-plot here. Justice J Chelameswar, the second senior-most judge in the court, is set to retire on June 22. His last effective working day will be on May 18, when the Supreme Court will close for summer holidays. By the time it reopens on July 2, his tenure would be over.

What happens if the collegium is not able to come to a clear decision on the other names by May 18?

Nothing stops the Chief Justice from calling for a collegium meeting during vacation. But assuming this doesn’t happen, Justice Chelameswar will be out of the collegium by the time the next meeting takes place when the court reopens.

What is the legal position of the recommendations when the composition of the collegium changes?

In its judgement in 1998 in response to a Presidential reference on the question of appointment of judges, the Supreme Court clearly laid down what should be done when a judge of the collegium retires and its composition changes.

The court said:

“It may be that one or more members of the collegium that made a particular recommendation have retired or are otherwise unavailable when reasons are disclosed to the Chief Justice of India for the non-appointment of that person. In such a situation the reasons must be placed before the remaining members of the original collegium plus another Judge or Judges who have reached the required seniority and become one of the first four puisne Judges. It is for this collegium, so re-constituted, to consider whether the recommendation should be withdrawn or reiterated. It is only if it is unanimously reiterated that the appointment must be made. Having regard to the objective of securing the best available men for the Supreme Court, it is imperative that the number of Judges of the Supreme Court who consider the reasons for non-appointment should be as large as the number that had made the particular recommendation.”

In simple terms, if the reiteration of KM Joseph is not done before Justice Chelameswar’s retirement, then the reconstituted collegium will have to again reiterate it unanimously.

This means Justice AK Sikri, who will take the place of Justice Chelameswar on the collegium, will have to agree to the decision to elevate Joseph to ensure unanimity. As the judgement makes it clear, only a unanimous reiteration will be binding on the central government.

In April, the Centre sent Joseph’s file back to the collegium for reconsideration citing problems of seniority and overrepresentation for the Kerala High Court in the apex court. The collegium met on May 2 to consider this matter, but it was deferred. On Friday, it in principle agreed to unanimously reiterate the elevation.