In light of the controversies surrounding the elevation of high court judges by the Supreme Court Collegium, I analyse the collegium’s current recommendations and demonstrate its inability to ensure fair representation of all high courts in the top court benches and judges from marginalised castes.
The Supreme Court has a sanctioned strength of 34 judges, but only 29 currently share the caseload. As per reports, Chief Justice of India U.U. Lalit tried initiating the process for the elevation of three judges — Punjab and Haryana High Court Chief Justice Ravi Shankar Jha, Patna High Court Chief Justice Sanjay Karol, and Manipur High Court Chief Justice P. V. Sanjay Kumar — and senior advocate K.V. Viswanathan.
The process adopted for their elevation has run into a controversy, with two collegium members objecting to the CJI’s attempt to get written consent for four names proposed for elevation instead of considering them in a formal meeting. However, an analysis of the considered names brings back into focus the other limitations of the collegium system in ensuring adequate representation of judges from all high courts in the Supreme Court.
Criterion on appointment of judges
The criterion for appointing judges in the Supreme Court is enshrined in Article 124 of the Constitution. To implement it, the Government of India (GoI) follows a memorandum of procedure. Besides this, some informal criteria are also adopted. “When judges are appointed to the Supreme Court, there are some factors that are kept in mind. One of them is regional representation; they try to ensure different high courts are represented. Second is seniority, knowledge of law, competence, and definitely, the reputation the judge has earned over the years,” Justice Indira Banerjee, who was part of the collegium, said in a recent interview after her retirement.
Several other judges have reiterated similar points time and again. It is difficult to test the knowledge of the law, competence, and reputation of recommended judges. But testing them on the parameters of regional representation as well as seniority is easier now since the central government’s Department of Justice releases monthly data on apex court and high court judges. I use the data below to test whether recently recommended judges fulfil these two criteria.
Representation of high courts in Supreme Court benches
Out of the 29 judges in the Supreme Court, 27 have been elevated from high courts. The remaining two — CJI Lalit and Justice P. Sri Narsimha — have been directly elevated from the bar of the apex court. As per the data released on 1 October, analysed in Table 1, out of 25 high courts, only 13 are represented in Supreme Court benches. The Allahabad High Court has the highest sanctioned strength of judges (160) in the country, but only two of its judges are represented at the Supreme Court benches. The high courts of Delhi, Mumbai, Gujarat, and Karnataka hold greater representation. Representation here mainly means the parent high court of the judge, defined on the basis of initial appointment.
High courts without any representation in the Supreme Court—Patna, Telangana, Odisha, and Andhra Pradesh—are all quite big in their strength. Their representation in the top bench cannot be ignored easily.
Testing collegium recommendations
The Supreme Court Collegium, under CJI Lalit, first made a recommendation for the elevation of Bombay High Court Chief Justice Dipankar Datta to the apex court. The parent high court of Justice Datta is the Calcutta High Court, which already has one judge representing it in the top court—Justice Aniruddha Bose. So, while making this recommendation, the collegium ignored the lack of representation of the high courts of Patna, Telangana, Odisha, and Andhra Pradesh. In its second recommendation of four judges, the collegium incorporated the names of Justice P.V. Sanjay Kumar whose parent high court is Telangana High Court, but it ignored the rest of the three high courts.
Instead of ensuring representation of these high courts, the CJI has proposed the elevation of Justice Ravi Shankar Jha and Justice Sanjay Karol whose parent high courts are Madhya Pradesh and Himachal Pradesh respectively. The former already does have one representation in the Supreme Court but the latter does not have any representation but it is a relatively smaller high court. Among all high court judges, Justice Ravi Shankar Jha is the most senior since he was initially appointed in 2005. His recommendation, therefore, seems to be a reward of seniority. The recommendation for Justice Sanjay Karol, though, meets representation criteria since his parent high court (Himachal Pradesh) is not currently represented in the apex court bench but has a relatively lower strength of judges when compared to the high courts of Patna, Odisha, Andhra Pradesh, and Chhattisgarh.
Curious case of overlooking two Justices
If we combine the criteria of regional representation and seniority, Tripura High Court Chief Justice Indrajit Mohanti, who hails from Orissa High Court, should have found a spot in the list of recommendations. He is senior to Justice Sanjay Karol, and his parent high court is also unrepresented. Similarly, Jharkhand High Court Chief Justice Ravi Ranjan, from Patna High Court, should have also figured in the list if the collegium wants to ensure representation of the Patna High Court in the apex court. Justice Navin Sinha was the last judge from Patna High Court who retired more than a year ago. Justice Ravi Ranjan is scheduled to retire in December 2022, and all other judges of Patna High Court are relatively junior, which effectively means that ignoring Justice Ranjan would mean a long wait for Patna High Court to be represented in the Supreme Court bench.
The representation of the maximum number of high courts in the top court is necessary to symbolise its ‘all-India’ character. However, the above analysis shows that the collegium has not taken adequate steps to ensure it. In light of current controversies, now is the time for the Union government to ensure representation. One more fact is surprising, though: While proposing the recommendations for the appointment of four judges, the CJI did not consider women and Scheduled Tribes.
Arvind Kumar (@arvind_kumar__), PhD in Politics, Royal Holloway, University of London, and Associate Fellow of Higher Education Academy (AFHEA), United Kingdom. Views are personal.
(Edited by Humra Laeeq)