Dealing with a more assertive Executive: Collegium needs to clarify policy on Regional Diversity

Bar & Bench November 2 2019
Collegium

Rangin Pallav Tripathy

During the first term of the Modi government that came into power in 2014, the Supreme Court Collegium faced a level of political scrutiny it had escaped in the first two decades of its existence.

The Collegium system came into existence at a time of political instability in the 90s. For the next two decades, while governments at the Centre survived on uncertain majorities, the Collegium thrived and integrated itself into the constitutional structure. Even if there were missives about the Collegium’s functioning, the governments did not have the manoeuvring space to confront the Judiciary while managing their own survival.

In its first term, apart from the failed attempt to dismantle the Collegium system, the Modi government regularly objected to the recommendations of the Collegium, on many occasions with ‘official’ reasons. With an increased majority in its second term, the Collegium can expect more assertions from a government that seems intent on claiming a determinative role in judicial appointments.

While many would know that the ‘official’ reasons cited by the government need not always be the ‘real’ reasons for objecting to a candidate, the Collegium ought to adapt to deal with this tendency of the Executive. With the Collegium required to defend its decisions more often, it must set its house in order regarding fundamental policy matters.

The government would have fewer opportunities to cite ‘official reasons’ if the Collegium were less ambiguous and more transparent about its own policies and functioning. If the Collegium just seeks to reassert its authority without mounting credible responses to the reasons cited by the government, it will progressively lose the battle of perception, which so far, has aided the Judiciary more than the political class. 

One such ‘official’ reason used by the government is the issue of regional diversity in the Supreme Court. Last year, when the Central government returned the recommendation of the Collegium for the appointment of Justice KM Joseph as a judge of the Supreme Court, it provided a couple of reasons for its decision. Among the list of reasons was that there was already one judge from the Kerala High Court on the Supreme Court bench (Justice Kurian Joseph). The Minister for Law and Justice stressed that there were many other High Courts that did not have representation in the Supreme Court, and expressed concerns over the over-representation of one parent High Court. 

Disregarding the alleged motives behind the decision - which have been sufficiently dissected in mainstream media - the reason given by the government raised an important issue. Is it necessary that all parent High Courts be fairly represented in the Supreme Court? What has been the historical trend in this respect?

While the Collegium did reiterate the candidature of Justice Joseph, it failed to clarify its policy on the issue. 

No Constitutional Mandate for a Diverse Judiciary 

Firstly, in India there is no constitutional mandate that the composition of the Judiciary should reflect the demographic diversity (under any of the identity markers such as race, gender, region etc) as have been ensured in some other countries.

In the United Kingdom, there is a clear mandate that at any point of time, the judges of the Supreme Court collectively between them will have knowledge and experience of the laws of each part of the United Kingdom. This provision ensures that there is adequate regional diversity in the Supreme Court at all points of time. In South Africa, it has been stipulated that the need for the Judiciary to broadly reflect the racial and gender composition of South Africa must be taken into account.

Understanding Representation as Time-Share

The absence of a similar constitutional mandate in India has had a clear effect on the regional diversity in the Supreme Court. While the government highlighted multiple judges from the same parent High Court being in the Supreme Court at the same time as a cause for concern while returning the recommendation for Justice KM Joseph, a more tangible indicator of over-representation and under-representation is the amount of time for which judges from different parent High Courts have held office in the Supreme Court over an extended period of time. 

Unequal Representation

If we look at the origin date of parent High Courts and the period of time for which judges from the concerned High Court have served in the Supreme Court, clear anomalies emerge (all judges who retired by June 1, 2017 covered in the study).

As many as 7 parent High Courts have never been represented in the Supreme Court (Chhattisgarh, Jharkhand, Manipur, Meghalaya, Sikkim, Tripura, and Uttarakhand). Of the total time the Calcutta High Court has been in existence, there was only a period of 7 days in 1998 when a judge from the Calcutta High Court was not in the Supreme Court. That amounts to 0.03% of the total existence period of Calcutta High Court.

On the other hand, of the total period for which Himachal Pradesh High Court and Rajasthan High Court have been in existence, they have had no representation in the Supreme Court for 93.06% and 62.62% of that time. 

High Court Percentage of non-representation
Himachal Pradesh 93.06
Rajasthan 62.62
Assam 60.59
Orissa 50.41
Jammu & Kashmir 48.14
Delhi 42.56
Karnataka 39.29
Hyderabad 35.04
Punjab & Haryana 27.03
Patna 24.84
Gujarat 24.78
Kerala 23.81
Madhya Pradesh 20.61
Allahabad 14.55
Madras 9.86
Bombay 2.78
Calcutta 0.03

The High Courts with maximum period of representation are Calcutta, Bombay, Madras and Allahabad. The total period of non-representation in the Supreme Court for these four High Courts is less than 15% of their total existence period. 

Another aspect to consider is the continuity of representation in the Supreme Court. Continuity of representation means the continuous period of time for which at least one judge from a particular parent High Court has been in the Supreme Court. A period is continuous where before a judge from any parent High Court retires, another judge from the same parent High Court assumes office in the Supreme Court. If there is a gap between the earlier judge demitting office and the subsequent judge assuming office, the continuity is lost. 

High Court Continuous uninterrupted period of representation
Calcutta 50.16
Allahabad 42.59
Bombay 33.6
Delhi 28.25
Kerala 19.94
Madhya Pradesh 19.52
Madras 19.36
Karnataka 16.33
Patna 16.07
Hyderabad 15.85
Gujarat 15.31
Punjab & Haryana 14.07
Orissa 13.67
Rajasthan 12.81
Jammu & Kashmir 10.64
Assam 9.45
Himachal Pradesh 3.22

Note: This analysis focuses on the length of time served by the judges in the Supreme Court. For this analysis, the starting point is the date of creation of the High Court. 

In relation to the Parent High Courts of the first judges of the Supreme Court, this has been slightly tweaked. The first judges to the Supreme Court were in a continuation of their tenure in the Federal Court of India. Thus, the representation of these High Courts has been calculated from the date on which they had representation in the judicial body which was replaced by the Supreme Court of India. Thus, the starting date for these High Courts is the date on which a judge from which these High Courts began their tenure in the Federal Court of India. 

The top six parent High Courts from the earlier list also occupy the dominant positions here, except for the anomalies of Delhi coming in at fourth and Madras being pushed back to seventh. For the first 21 years of its existence, the Delhi High Court had no representation in the Supreme Court. However, since 1987, it has had at least one judge in the Supreme Court at all times. In the case of Madras, while it has been well represented in the Supreme Court over the period of its existence, there have been multiple gaps in the tenure of judges from the Madras High Court.

Need for a Clear Policy

While the desirability of norms mandating regional diversity in the Supreme Court is open to debate, the actual practice of appointments points to a clear imbalance in how different High Courts are represented in the Supreme Court. While certain states are consistently well represented in the Supreme Court, there are other states whose representation is mostly sporadic. There does not seem to be any evidence of a settled practice of ensuring regional diversity in the Supreme Court. 

A consistent pattern of uneven representation should be addressed. The possible reasons for this stark imbalance need to be explored and ascertained. The first step in that direction would be to have a clear policy in this respect. It should be clear whether regional diversity is an essential and formal factor in the appointment policy or not. If it is, then there should be clarity on the manner in which and the extent to which the regional diversity is accommodated in the appointment process. If it is not, it should not be possible for stakeholders in the appointment process to cite regional diversity as a relevant factor in the appointment process.

If it is raised as a factor, the Collegium should clearly assert its relevance or irrelevance in the matter of judicial appointments. The principles in this respect should be consistently applied in the form of an overall policy and not invoked only in individual cases. 

The author is a Fulbright post-doctoral Research Scholar at Harvard Law School. 

Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect those of Bar & Bench.