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Unveiling India's Supreme Court Collegium: Examining Diversity of Presence and Influence
Published online by Cambridge University Press: 29 March 2023
Abstract
Since 1993, judges in Indian higher judiciary are appointed by a collegium of judges in the Supreme Court headed by the Chief Justice. Academic scholarship on judicial diversity in India has failed to address two important issues arising out of this drastic development. Firstly, while the issue of diversity in the Indian higher judiciary has received limited attention over the years, there has been no attempt to examine the composition of the Supreme Court collegium which controls appointments to the higher judiciary. Secondly, while patterns of appointments have been analysed in relation to different Chief Justices and also the collegium vis-a-vis the executive, no attention has been paid to the specific collegiums which are responsible for the selection of judges. This has allowed the members of the collegium to exercise their power away from public scrutiny.
This article unveils the group of judges who have exercised influence as members of the collegium and how this influence has been distributed amongst judges in terms of their social and professional background. Findings in this article show that membership of the collegium and influence within the collegium has not had representative diversity.
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- Copyright © The Author(s), 2023. Published by Cambridge University Press on behalf of the National University of Singapore
Footnotes
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Professor of Law, National Law University Odisha; Fulbright-Nehru Post-Doctoral Scholar at Harvard Law School (2019–2020). I would like to acknowledge the support of Anmol Narukha, Paras Nath Singh, and Apoorv Anand for their help in data collection and data analysis for this article.
References
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2 The appointment of judges to the Supreme Court and the High Courts is regulated by Article 124 and 217 of the Constitution of India. These provisions vest the power of appointing judges with the President of India and also prescribe a mandatory consultative process. As per the bare text of the provisions, for appointing judges in the Supreme Court, it is mandatory to consult the Chief Justice of the Supreme Court. For appointing judges in the High Courts, it is mandatory to consult the Chief Justice of the Supreme Court, Chief Justice of the concerned High Court and the Governor of the concerned State.
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4 Supreme Court Advocates-on-Record Association v Union of India AIR 1994 SC 268 (henceforth ‘SCORA 1994’).
5 Re: Appointment and Transfer of Judges AIR 1999 SC 1 (henceforth ‘Reference 1999’).
6 Supreme Court Advocates on Record Association v Union of India (2016) 5 SCC 1 (henceforth ‘SCORA 2016’).
7 Overruling an earlier ruling (SP Gupta v The President of India AIR 1982 SC 149), the court held that the term ‘consultation’ cannot be given a literal meaning and upended the entire process of judicial appointments. The court held that consultation with the Chief Justice means that no judge can be appointed without his approval. The court based its decision on two major premises. Firstly, the court stressed that the judiciary is better equipped to decide on the suitability of candidates for judgeship in comparison to the executive. Secondly, the court flagged the conflict of interest position the executive occupies due to its status as a major litigant before the courts.
8 The court clarified that ‘opinion of the Chief Justice’ does not mean his ‘individual opinion’ but the ‘representative opinion’ of the judiciary which he cannot reach on his own. To justify the representative character, the court held that the Chief Justice must consult two of his senior-most colleagues in the Supreme Court. No explanation was offered for including only the ‘two senior most colleagues’ and not others. SCORA 1994 (n 4) para 57.
9 Reference 1999 (n 5) para 14.
10 Reference 1999 (n 5) para 27. There is also a collegium which operates at the High Court level which consists of the Chief Justice and two senior-most judges of a High Court. This collegium at the High Court level is responsible for recommending names to the collegium at the Supreme Court level for appointment of judges to the concerned High Court. SCORA 1994 (n 4) para 69.
11 However, the executive can stall files inordinately. Especially in the last couple of years, there have been notable instances of the Union government stalling certain recommendations from the collegium. See Bhadra Sinha, ‘16 names cleared by the SC collegium for HC judge posts stuck with govt, 6 of them since 2019’ (The Print, 28 Jan 2021) <https://theprint.in/judiciary/16-names-cleared-by-sc-collegium-for-hc-judge-posts-stuck-with-govt-6-of-them-since-2019/593258/> accessed 21 Mar 2021.
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17 Rangin Pallav Tripathy & Soumendra Prasad Dhanee, ‘An Empirical Assessment of the Collegium's Impact on Composition of the Indian Supreme Court’ (2020) 32 National Law School of India Review 118.
18 In South Africa, the judiciary is expected to reflect the gender and racial composition of the social demography. See Constitution of the Republic of South Africa 1996, s 174(2). In United Kingdom, there is a mandate which ensures regional diversity in the Supreme Court. See Constitutional Reforms Act 2005, s 28(7).
19 For example, article 330 of the Indian Constitution provides for reservations of seats in the Union Parliament for members of Scheduled Castes and Scheduled Tribes.
20 George H Gadbois Jr, Judges of the Supreme Court of India 1950–1989 (Oxford University Press 2011).
21 Chandrachud (n 13).
22 SCORA 1994 (n 4) para 46.
23 SCORA 1994 (n 4) para 72; Reference 1999 (n 5) para 19.
24 The Memorandum of Procedure was put in public domain post the decision in SCORA 2016 (n 6). See ‘Memorandum of procedure of appointment of Supreme Court Judges’ (Department of Justice) <https://doj.gov.in/appointment-of-judges/memorandum-procedure-appointment-supreme-court-judges> accessed 2 May 2021.
25 Apurva Vishwanath, ‘Deadlock in Collegium: CJI Bobde may retire without any appointment to the Supreme Court’ (Indian Express, 14 Feb 2021) <https://indianexpress.com/article/india/sc-judge-collegium-cji-s-a-bobde-justice-kureshi-7186487/> accessed 2 May 2021.
26 Krishnadas Rajgopal, ‘Controversy continues over Justice Khanna's elevation’ (The Hindu, 21 Jan 2019) <https://www.thehindu.com/news/national/controversy-continues-over-justice-khannas-elevation/article26052966.ece> accessed 2 May 2021.
27 ‘Filling up vacancies of Judges in the Supreme Court’ (Supreme Court of India, 10 Jan 2019) <https://main.sci.gov.in/pdf/collegium/11-1-2019/1.%202019.01.10-Resolution-SC%20Appointment.pdf> accessed 2 May 2021.
28 At the time of his appointment, Justice Sanjiv Khanna was 33rd in the list of seniority amongst High Court judges in India. Rekha Sharma, ‘Seniority Cast Aside’ (Indian Express, 19 Jan 2019) <https://indianexpress.com/article/opinion/columns/supreme-court-judges-appointment-dinesh-maheshwari-sanjiv-khanna-seniority-cast-aside-5545527/> accessed 5 May 2021.
29 Until 1999, it consisted of the Chief Justice and two senior-most judges of the Supreme Court. See accompanying text in n 8 above.
30 Not to be confused with the collegium which exists at the High Court level. See accompanying text in n 10 above.
31 Details of the recommendations made by the collegium are available in the Supreme Court website. See ‘Resolutions of Collegium’ (Supreme Court of India) <https://main.sci.gov.in/collegium-resolutions> accessed 31 Mar 2021.
32 ibid.
33 See Tripathy & Dhanee (n 17).
34 While the Supreme collegium is expected to pay due attention to the inter se seniority of High Court judges, seniority has neither been imagined nor practiced as an inviolable criterion. SCORA 1994 (n 4) para 70. There are various instances when the norms of seniority have been ignored. See Anup Surendranath, Aparna Chandra & Suchindran Baskar ‘Ball's in Supreme Court’ (Indian Express, 27 Apr 2018) <https://indianexpress.com/article/opinion/columns/indu-malhotra-woman-supreme-court-judge-k-m-joseph-chief-justice-of-india-dipak-misra-collegium-system-5153260/> accessed 31 Mar 2021.
35 Delayed appointments can also play a major role when judges are appointed to the Supreme Court in terms a judge's chance of becoming the Chief Justice or becoming a member of either collegium.
36 6 October 1993 is that date on which the collegium came into existence after the decision in SCORA 1994 (n 4).
37 ‘Council of Ministers’ (india.gov.in) <https://www.india.gov.in/my-government/whos-who/council-ministers> accessed 31 Mar 2021.
38 For more on the transparency practices of the collegium, see Rangin Pallav Tripathy, ‘The Supreme Court Collegium and Transparency: An Empirical Enquiry’ (2021) 56(22) Economic and Political Weekly 33.
39 Rangin Pallav Tripathy, ‘Background of Indian Supreme Court Judges’ (Justice Hub, 13 Apr 2021) <https://justicehub.in/dataset/background-of-indian-supreme-court-judges> accessed 2 May 2021.
40 See the main text accompanying n 33 above.
41 Justice Misra was appointed as judge of the Orissa High Court on 17 January 1996. Justice Chelameswar was appointed a judge of the Andhra Pradesh High Court on 23 June 1997.
42 Until 31 March 2021, there have been only eight judges of the Supreme Court appointed directly from the Bar without any prior experience of judgeship. The collegium has appointed five judges in 28 years of its functioning. The other three were appointed by the executive during a span of 43 years.
43 Justices F Nariman and Arun Mishra were appointed on the same date (7 July 2014) but Justice Mishra was designated seniority. This allowed Justice Mishra to become a member of the Supreme Collegium before Justice Nariman after the retirement of Justice Madan B Lokur. Justice Nariman became a member of the Supreme Collegium around two months later after the retirement of Justice Arjan Kumar Sikri.
44 Justice UU Lalit was appointed along with Justice R Banumathi on 13 August 2014. Because of Justice Banumathi's senority, Justice Lalit became a member of the Supreme collegium only after Justice Banumathi retired on 19 July 2020.
45 Justice L Nageshwar Rao was appointed on the same date with three other judges; Justices AM Khanwilkar, DY Chandrachud, and Ashok Bhushan. Due his lack of seniority, Justice Rao will retire without becoming a member of the High collegium. On the other hand, Justice Khanwilkar will retire after becoming a member of the High collegium and Justice Chandrachud is scheduled to be the Chief Justice after the retirement of Justice UU Lalit.
46 Justice Narsimha was appointed on 31 August 2021 along with eight other judges. Due to being last in the list of seniority, he will assume membership of the collegium in 2026 after other judges appointed alongside him become members in 2024 and 2025.
47 Confirmed from the response of Department of Justice, Government of India to the application filed on 5 April 2021 under the Right to Information Act 2005.
48 Interview with Justice VN Khare (26 Mar 2021); and interview with Justice S Rajendra Babu (21 Aug 2019). Corroborated by the reply received from the Department of Justice, Government of India to the application filed on 8 May 2021 under the Right to Information Act 2005.
49 See the facts highlighted in Vishwanath (n 25).
50 Interviews with Justice Arijit Pasayat (29 Nov 2021) and with Justice BS Chauhan (29 Nov 2021).
51 Gogoi, Ranjan, Justice for the Judge (Rupa Publications 2021) 73Google Scholar.
52 Confirmed from the reply of Department of Justice, Government of India to the application filed on 5 April 2021 under the Right to Information Act 2005.
53 Interview with Justice MN Venkatachaliah (24 Mar 2021). Justice Venkatachaliah's recollection of the incident is corroborated by the response received from the Department of Justice to a Right to Information query.
54 This table provides an overview of the data which has been used to analyse the influence of Supreme collegium members. It provides information regarding the number of appointments made by the Supreme collegium and the number of appointees who have assumed or are scheduled to assume membership of the Supreme collegium, High collegium or office of the Chief Justice. The identified dates are the upper limit of a timeline when the membership of the Collegiums will be from amongst the judges appointed before 30 September 2021.
55 This table provides an overview of the membership of Supreme collegium and High collegium from the inception of the collegium system till 30 September 2021 in terms of the social and professional background of the members.
56 This table provides overview of female members in Supreme collegium and High collegium (till 30 September 2021) along with details of the number of appointments they have been involved in cumulatively. It also sheds light on the lack of intersectionality between gender, caste and professional background.
57 For more on caste categories, see section on ‘Caste’.
58 This table provides the details of the share of female judges in the membership and collegium-tenure of the Supreme collegium and the High collegium. Collegium-tenure refers to the amount of time spent in the collegium by a member.
59 Justice Ruma Pal spent a little less than year in the High collegium from 2005 to 2006.
60 However, her tenure as Chief Justice will be only for just over a month. She will have the second shortest tenure as a Chief Justice after the 30 days tenure of Justice S Rajendra Babu who also belonged to the province of Karnataka, the same as that of Justice Nagarathna.
61 The cadre of HC-Service includes Supreme Court judges appointed from the pool of High Court judges who were serving in the lower judiciary at the time they were appointed to the High Court. The cadre of HC-Bar includes Supreme Court judges appointed from the pool of High Court judges who were practicing advocates at the time they were appointed to the High Court. For more see section on ‘Professional Background’.
62 Constitution of India 1950, art 15(4).
63 Constitution of India 1950, art 16(4).
64 For example, in the subordinate judiciary in the state of Odisha, there is a reservation of 16.25% of the posts for members of Scheduled Castes, 22.50% for members of Scheduled Tribes and 11.25% for members of Socially and Educationally Backward Classes. See Rule 17 of The Odisha Superior Judicial Service and Orissa Judicial Service Rules 2007.
65 This table lists the female members of the Supreme collegium and the details of the number of appointments they have been involved in individually along with details of their caste, professional background and the regional province they belong to.
66 Judges from HC-Service refers to Supreme Court judges who were appointed as High Court judges while serving in the subordinate judiciary. See section on ‘Professional Background’.
67 Justice Dipak Misra spent 1297 days as a member of the Supreme collegium which constituted 51% of his tenure as a Supreme Court judge. Justice Altamas Kabit spent 50% of the judicial tenure (1439 days) as a member of the Supreme collegium.
68 In relation to Supreme collegium members, Justice Altamas Kabir and Justice SH Kapadia share the top spot with Justice KG Balakrishan with involvement in 20% of appointments. Justice Balakrishnan has been involved in 20% of all Supreme Court appointments and 19% of all High collegium members.
69 Justice Alatamas Kabir was also involved in the appointment of 19% of all Chief Justices under the collegium system.
70 This table lists the most influential members of the Supreme collegium in terms of involvement in appointment of judges. All the judges in the list are men. This table also gives details on their caste, professional background and the regional province they belong to.
71 This table lists the ten most influential Chief Justices in terms of involvement in appointment of judges. This table also gives details on their caste, professional background and the regional province they belong to. There has not been a female Chief Justice in the Supreme Court till 30 September 2021.
72 As a Chief Justice, Justice AS Anand has been involved in the appointment of the same number of future Supreme Collegium members as Justice Balakrishnan. Justice Anand's share in relation to Supreme Court judges and future Chief Justices is 13% and 12% respectively.
73 Reference 1999 (n 5).
74 Namit Saxena, ‘Disproportionate Representation at the Supreme Court: A Perspective Based on Caste and Religion’ (Bar and Bench, 23 May 2021) <https://www.barandbench.com/columns/disproportionate-representation-supreme-court-caste-and-religion-of-judges> accessed 23 Jun 2021.
75 This table provides overview of OBC members in Supreme collegium and High collegium (till 30 September 2021) along with details of the number of appointments they have been involved in cumulatively. It also sheds light on the lack of intersectionality between caste, gender and professional background. It also highlights how most of the OBC members belong to the southern provinces.
76 This table provides the details of all the appointments that OBC members in the Supreme collegium have been involved in individually. All judges in this list are men. The table also provides details of their professional background and the regional province they belong to.
77 This table shows the connection between the appointment of a member from the marginalised caste with the presence of a member from the marginalised caste in the Supreme collegium. The Supreme collegium has appointed nine judges from the marginalised castes (Justice S Ratnavel Pandian was appointed by the executive). We can see that at the time of the appointment of these six judges from marginalised castes there was also a member in the Supreme collegium from marginalised caste.
78 That is, (1) High Court judges with at least five years of experience, (2) Advocates with at least ten years of experience and (3) Distinguishes jurists. See Constitution of India 1950, art 124.
79 This table provides overview of members from professional background of HC-Service and Bar in Supreme collegium and High collegium (till 30 September 2021) along with details of the number of appointments they have been involved in cumulatively. It also sheds light on the lack of intersectionality between professional background, caste and gender.
80 Tripathy & Dhanee (n 17)
81 The first judge with the background of Bar to become the Chief Justice of the Supreme Court was SM Sikri from the region of Punjab. He was the Chief Justice for over two years from 1971 to 1973.
82 This table provides the number of appointments that Supreme collegium members from HC-Service background have been involved in individually. The table also provides details of their gender, caste and the regional province they belong to.
83 This table provides the number of appointments that Supreme collegium members from ‘Bar’ background have been involved in individually. The table also provides details of their gender, caste and the regional province they belong to.
84 This table provides overview of regional representation in the Supreme collegium (till 30 September 2021). It highlights the most influential and least influential regional province along with details of regional provinces which have had multiple members in the collegium at the same time.
85 See Constitution of India 1950, pt VIII.
86 This table provides cumulative details of cohorts of members from different regional provinces in the Supreme collegium and the High collegium along with their share in the combined collegium-tenure of all members till 30 September 2021. Collegium-tenure refers to the time spent by a member in the respective collegium.
87 This table provides cumulative details of the influence of cohorts of members in the Supreme collegium in terms of the number and nature of appointments they have been involved in.
88 Deeptiman Tiwary, ‘Jammu and Kashmir state to two UTs–today, later’ (The Indian Express, 31 Oct 2019) <https://indianexpress.com/article/explained/jammu-and-kashmir-union-territories-today-article-370-special-status-6095406/> accessed 17 Mar 2022.
89 Tripathy & Dhanee (n 17).
90 Vishwanath (n 25).
91 For more details on the stand-off, see the main text accompanying (n 73) above.
92 Gogoi (n 51) 80. Justice Gogoi has admitted on record that the Supreme Collegium appointed Justice Sanjiv Khanna as a judge of the Supreme Court at the time it did to ensure that he becomes the Chief Justice. This was done as there had been no Chief Justice from Delhi after Justice YK Sabharwal (he was the Chief Justice from November 2005 to January 2007). Had Justice Khanna been appointed a later, he would not be due to become the Chief Justice Khanna is due to become the Chief Justice for a period of six months after the retirement of Justice DY Chandrachud in November 2024.
93 Kumar, Alok Prasanna, ‘Absence of Diversity in Higher Judiciary’ (2016) 51 Economic and Political Weekly 10Google Scholar.
94 See section on ‘Professional Background’.
95 ‘Judges of the Supreme Court of India and High Courts’ (Department of Justice) <https://cdnbbsr.s3waas.gov.in/s35d6646aad9bcc0be55b2c82f69750387/uploads/2023/01/2023010318.pdf> accessed 6 Feb 2023.
96 Chandra, Hubbard & Kalantry (n 16).
97 Rangin Pallav Tripathy, ‘India's higher judiciary lacks professional diversity. It's now a monopoly of lawyer-judges’ (The Print, 11 Jun 2021) <https://theprint.in/opinion/indias-higher-judiciary-lacks-professional-diversity-its-now-a-monopoly-of-lawyer-judges/675881/> accessed 20 Mar 2023.
98 Rackly, Ericka & Webb, Charlie, ‘Three Models of Judicial Diversity’, in Gee, Graham & Rackley, Erika (eds), Debating Judicial Appointments in an age of Diversity (Routledge 2019)Google Scholar; Malleson, Kate, ‘Rethinking the Merit Principle in Judicial Selection’ (2006) 33 Journal of Law and Society 126CrossRefGoogle Scholar.
99 Chandra, Hubbard & Kalantry (n 16).