Recent Appointments To Higher Judiciary: Time To Make Informal Criteria Transparent

One advantage of researching the background of those being appointed to the Supreme Court is the insights they yield regarding the role of pedigree in their success at every stage in their long judicial careers. Four out of the eight recent appointees to the Supreme Court -about whose family background information is available in the public domain - belong to reputed legal families, with their father or grandfather having been successful lawyers or Judges in the High Courts. This number may be more, if only the information about the family background of the remaining four Judges is also available in the public domain.

But it is not just the privileged family background which explains why some make it to the Supreme Court while others can’t, given that the Constitution only prescribes minimum criteria of eligibility for appointment as Supreme Court Judges. Six out of the eight appointees have been Chief Justices of High Courts. It shows that the Supreme Court Collegium has not been able to depart from the trend of picking potential Judges from among those who are serving as the High Court Chief Justices.

Indeed, this trend is at least three decades-old, and is unlikely to change in the immediate future. It also indicates how an informal, unwritten eligibility criterion has been overwhelmingly followed by the Supreme Court’s Collegium without any rationale. The preference shown to those who are serving as the Chief Justices of High Courts, even while considering an informal criterion of seniority, is bereft of any logic. It has been revealed that at one point, the Supreme Court was composed of roughly even numbers of former senior puisne high court judges and chief justices.

On the question of seniority, the facts speak for themselves. Of the eight recent appointees, Justice Dipankar Datta’s date of original appointment as a High Court Judge was June 22, 2006 while that of Justice Pankaj Mithal was July 7, 2006. Justice Sanjay Karol’s date of appointment as High Court Judge was March 8, 2007, while that of Justice P.V.Sanjay Kumar was August 8, 2008. The date of appointment as High Court Judge, for Justice Ahsanuddin Amanullah was June 20, 2011, while for Justice Manoj Misra, it was November 21, 2011.

The inconsistency is obvious in the case of last two appointees, namely, Justices Rajesh Bindal and Justice Aravind Kumar, whose dates of appointment as High Court Judges were March 22, 2006 and June 26, 2009 respectively.

As author Abhinav Chandrachud explains in his book, The Informal Constitution, (Oxford, 2014) under Article 124(3)(a) of the Constitution, a high court Judge becomes eligible for appointment to the Supreme Court only after serving five years in office. However, in practice, he says, judges get appointed to the Supreme Court after serving significantly longer terms on a high court - close to 13 to 14 years. But the data on recent appointees suggests that this waiting period for elevation to the Supreme Court may be longer or shorter than what Abhinav found in his study, depending on various factors, which are inexplicable in the absence of transparency in the criteria adopted by the Collegium while making recommendations.

Justice Dipankar Datta and Justice Pankaj Mithal spent as many as 16+ years each on the high courts. Justice Sanjay Karol spent nearly 16 years as the Judge/Chief Justice of the High Court. Justice P.V. Sanjay Kumar served for 14+ years on the High Courts. Justices Amanullah and Manoj Misra, on the contrary, served only for 12+ years each on the High Courts, before their elevation to the Supreme Court. Justices Rajesh Bindal and Aravind Kumar served for 16+ and 14+ years respectively on the High Courts before their elevation to the Supreme Court.

This inconsistency in the high court tenures of Supreme Court appointees is bound to raise the question on what should be the ideal tenure for a candidate to enter the consideration zone for appointment as a Supreme Court Judge. The Supreme Court Collegium’s Resolutions, uploaded on the website, do not throw any light on this factor, despite the refreshing transparency which marked the inauguration of the current Chief Justice of India, D.Y.Chandrachud’s tenure.

The last Resolution on the Collegium’s recommendation to appoint Chief Justices Rajesh Bindal and Aravind Kumar to the Supreme Court sought to throw some light on these informal criteria for selection to the Supreme Court, but fails to explain which of these influenced their final selection. One is thus at a loss to understand whether the Collegium gave weightage to the seniority factor, or to the merit factor.

The Collegium’s sub-classification of the diversity and inclusion criteria into four categories, namely, High Court representation, marginalised and backward sections, gender and minorities is useful, but it does not throw light on which of these influenced the selection of Judges recommended by it, if at all.

Similar absence of logic marks the data on High Court representation in the Supreme Court, as suggested by the Parent High Courts of Judges. If one looks at the data on the 34 Judges on the Supreme Court today, their Parent High Courts number 17, but it is not clear what sort of balancing the current composition seeks to achieve. Among those High Courts which are currently unrepresented include Chhattisgarh, Jharkhand, Jammu and Kashmir and Ladakh, Andhra Pradesh, Manipur, Meghalaya, Orissa, Sikkim and Tripura. On the contrary, some High Courts may be overrepresented, namely, Karnataka (3), Allahabad (4), Gujarat (3), Delhi (4), and Bombay (3).

Although the data on High Court representation, minorities and gender on the Supreme Court is easy to get, how many of the Supreme Court Judges currently hail from marginalised and backward segments of the society - which is admittedly an important criterion of selection according to the Collegium- is not readily apparent, although that number may be negligible.

It is inexplicable why the Supreme Court Collegium could not consider even one woman candidate for elevation as the Supreme Court Judge to fill any of the eight recent vacancies.

Take another informal criteria, age of the Judges being appointed to the Supreme Court. Of the eight recent appointees, Justice Manoj Misra is the youngest, with a longer tenure, having been born on June 2, 1965, while Justice Pankaj Mithal is the eldest, with his date of birth as June 17, 1961, and is likely to have the shortest tenure. The Law Commission had observed that short tenures of Supreme Court Judges went against the interests of the stability of the judicial administration of the country.

Abhinav Chandrachud observes in his book that older judges serve shorter terms on the Court, and are less threatening to the executive - perhaps the collegium’s insistence on older judges makes the collegium system itself non-threatening, even acceptable, to the executive. To him, the threshold age of 55, for entry to the Supreme Court, seems arbitrary. But the ages of some of the recent appointees to the High Courts also reveals that they are well above 50, thereby contributing to more mature, but less experienced Judges.

As Abhinav Chandrachud mentions in his book, the benefit of informal criteria is that they can tie themselves more easily to the pulse of the times, and change more easily than formal rules. But they can also be disadvantageous, without a formal backing. Absent a precise, coherent set of rules governing who shall and who shall not be considered eligible for appointment to the Supreme Court, these informal eligibility criteria are susceptible to arbitrary application, he suggests. “They can be bent or broken, or subjected to unexplained exceptions”, he warns.

For Abhinav, the fact that these informal criteria have not been written down in any formal enactment means that there has been a democratic deficit in their adoption - they have not been extensively debated, or subjected to public comment or criticism, unlike when formal laws are enacted. This, he says, has led to their perception as less sacrosanct than ordinary law.

Recently, the Supreme Court’s Collegium for recommending appointment of High Court Judges made it a point to highlight the Scheduled Tribe status of one of the appointees to the Gauhati High Court - Justice Kardak Ete. The Resolution mentions that besides his own competence and standing at the Bar, his Schedule Tribe identity would bring greater diversity and inclusion to the Bench. As a former Additional Advocate General of Arunachal Pradesh, Justice Ete, according to the Resolution, enjoys a good personal and professional image as a Senior Advocate.

It is important that the Collegium gives more information about the recommendees’ merit, performance, social profile, and family background, and indicate which factor overwhelmingly influenced a particular choice whether it is Supreme Court or High Court appointment. This information is crucial for a better understanding of our Judges and their judicial attitudes.