Since former Chief Justice of India K G Balakrishnan retired on May 11, 2010, no judge belonging to the Scheduled Caste has been elevated to the Supreme Court. Also, none of the current high court chief justices belong to the Scheduled Caste, which comprises over 16 per cent of the country’s population.
It is a similar story in the case of Scheduled Tribes as well.
Moreover, in the last 10 years, the Supreme Court collegium, which is tasked with recommending names for elevation to the apex court, has picked only three women candidates. Of these, two — Justice Gyan Sudha Misra and Justice Ranjana Prakash Desai — have since retired, while Justice R Banumathi remains in the Supreme Court.
The Supreme Court collegium comprises the Chief Justice of India and four senior-most judges. Data maintained by the Union Ministry of Law and Justice shows that the collegium has not followed any strict rule while elevating judges to the Supreme Court.
Earlier this month, three HC chief justices — A M Khanwilkar (Madhya Pradesh), D Y Chandrachud (Allahabad) and Ashok Bhushan (Kerala) — were elevated to the Supreme Court, on the recommendation of the collegium headed by CJI T S Thakur. As in the past, seniority was ignored.
The SC collegium ignored the claims of three current chief justices — L K Mohapatra of Manipur HC, D H Waghela of Bombay HC and Manjula Chellur of Calcutta HC — all of who are senior to the three chief justices who are now in the apex court. The seniority of HC judges is calculated on an all-India basis, according to the date of their appointment. Manipur Chief Justice L K Mohapatra was appointed as a judge of the HC on September 16, 1999 and retires next month. Bombay HC Chief Justice D H Waghela is the next senior-most, having been appointed on September 17, 1999 — he retires on August 10. Calcutta HC Chief Justice Manjula Chellur became a judge on February 21, 2000 and retires on December 4, 2017. Both she and Waghela became HC chief justices before the three CJs who were elevated to the Supreme Court recently.
There is also no clarity on the rules and criteria, if any, that govern the collegium’s decisions while making appointments to the Supreme Court. The Memorandum of Procedure (MoP) of appointment of Supreme Court judges, which is still in force — work on the new MoP is currently on after the Supreme Court declared the National Judicial Appointments Commission (NJAC) Act as “unconstitutional and void” last October — makes no mention of any such criteria. However, the law ministry’s data throws up some interesting statistics. In the current SC, eight HCs have no representation, while some are more represented than the rest.
The country’s largest HC — Allahabad High Court, which has a sanctioned strength of 160 judges — has only two representatives — Justice R K Agrawal and Justice Ashok Bhushan — in the Supreme Court while Bombay, with a sanctioned strength of 94, has five. Among the other high courts, Punjab and Haryana HC, which has a sanctioned strength of 85 judges, has two judges in the SC currently, while Madras, with a sanctioned strength of 75 judges, is represented by three judges in the Supreme Court. Delhi, which has a sanctioned strength of 60 judges, is represented by three judges in the apex court, while Calcutta (sanctioned strength 58) has one and Madhya Pradesh (sanctioned strength 53) has two representatives.
Among larger HCs, Rajasthan, with a sanctioned strength of 50 judges, is not represented on the apex court bench. Jharkhand too does not have any judges in the apex court. However, Gauhati HC, with a sanctioned strength of 24 judges, has sent two to the Supreme Court. Chhattisgarh, Himachal Pradesh, Manipur, Tripura, Meghalaya and Sikkim are the other high courts which are not represented in the apex court. Incidentally, for the next eight years, unless there is a major change due to an untimely death or resignation, the names of the successive CJIs are already clear.
After CJI Thakur retires on January 3 next year, Justice Jagdish Singh Khehar is set to become the CJI. The next in line are Justice Dipak Misra, Justice Ranjan Gogoi, Justice Sharad Bobde, Justice N V Ramana, Justice U U Lalit and Justice D Y Chandrachud in that order. During discussions in Parliament in August 2014 just before the MPs passed the NJAC Bill, there were questions about the inadequate representation of Scheduled Castes, Scheduled Tribes, Other Backward Classes and minorities in higher judiciary.
There were also demands for reservations for these sections in the higher judiciary, which, however, didn’t find favour with the government. “It is an unfortunate situation. When I was CJI, we did try to elevate a Scheduled Caste HC C J (P D Dinakaran), but due to the controversy, it was stalled. I don’t know if any names have been considered thereafter. There must be representation from the weaker sections, the caveat being that only the deserving should be brought,” said Justice Balakrishnan.