2021-The Year in Review: Judicial Appointments and Transfers

One of the highlights of the year for the Judiciary as an institution has been the recommendation of 9 judges to the Supreme Court of India. The Supreme Court Collegium recommendation, coming in after a year and a half, paved the way for the elevation of 9 high court judges and practicing lawyers as judges of the Apex Court. Apart from the record-high number of recommendations- the highest so far in one go - the news attracted much attention for the names therein and its implications on the composition of the Supreme Court. For the first time in its history, the names of three women judges were recommended for elevation to the Supreme Court. This not only resulted in raising the representation of women in the Supreme Court of India at the highest level ever since its establishment but would also pave the way for the appointment of India's first woman Chief Justice of India- Justice B.V. Nagarathna. While laudable in its own right, when the presence of four women judges on the Bench is seen against the total strength of the Court- thirty four- it is still dismal. At around 12%, the representation of women in the topmost court of the country is deficient compared to the sex ratio.

Lack of Social Diversity

This issue was brought up by the Chief Justice of India N.V.Ramana himself while delivering a speech at a function to felicitate lady advocates. The CJI urged women to "demand 50% reservation not as a charity but as a matter of right." These renewed calls for reservation for women in the judiciary came not only from within the institution itself but also from members of the legislature who called on the government to ensure gender representation in the higher judiciary. Members of Parliament raised the issue of the lack of gender diversity in the judiciary while discussing the Supreme Court and High Court (Salary and Conditions of Service) Bill, 2021 that seeks to clarify the date from which retired judges will be eligible to get pension. While deliberating on the bill, the issue of lack of adequate gender representation came up, with some members calling on the government to consider affirmative action to address the lack of gender diversity in appointments.

Another aspect of social diversity on the Bench, or the lack of it, that was brought up by law makers was the dismal representation of SCs, STs, OBCs and other sexual, religious, and marginalized sections of society. A DMK MP pointed out that: "In 71 years, there has not been a single Scheduled Tribe appointed as Supreme Court judge. Only 5 people from Scheduled Caste have been appointed to the SC. Only one particular community seems to be dominating the entire judicial community." In a fiery speech, MP John Brittas, called out over-representation of one community directly: "Out of 47 chief Justices of India as of date, at least 14 have been brahmins." Earlier this year, MP P Wilson had also written to the Law Minister urging that the government make diversity mandatory in the appointment of judges. Responding to these calls, Mr. Rijiju had stated that while the constitutional scheme of things does not allow for institutionalized reservation in the judiciary, the government has requested the Collegium to ensure diversity in its appointments.

The issues raised by the Parliamentarians are backed by raw data that shows the homogeneity in the identities of the puisne judges. However, the Law Minister's statement in Parliament shows that calls for affirmative action in the judiciary might remain a pipe dream- with the ball falling squarely in the Collegium's court (pun intended) to make the institution more diverse. On this front, there's a glimmer of hope as 2021 also saw the recommendation for the elevation of Mr.Saurabh Kirpal as a judge of the Delhi High Court. If his recommendation is accepted, it would be the first instance of an openly homosexual person becoming a member of the judiciary. With the elevation of three women judges and the recommendation of Mr. Kirpal, a small step seems to have been taken by the Collegium to break the hegemony of the Apex Court of the country as male, upper class, heterosexual, elite English-speaking club.

Collegium system, transparency, and NJAC

Not all is rosy when it comes to the issue appointment of judges and the functioning of the Collegium. As was seen during the debate over the SC and HC (Salary) Bill, 2021 the mechanism and the institution are replete with issues. In the Parliament, members voiced their opinion on the lack of transparency in the manner in which the Collegium functions and accused the government of stonewalling the recommendations of the Collegium to suit its own agenda. Some members renewed the calls for the National Judicial Appointment System urging the government to bring in a modified Bill in line with the NJAC case.

The Union Law Minister too expressed the interest of the government to reconsider the NJAC system. Speaking in the Parliament and on various other occasions throughout the year, Mr. Rijiju emphasized the need to relook the current system in place. He also took the opportunity to voice his disagreement with the Supreme Court's orders issued in M/s PLR Projects Pvt. Ltd v Mahanadi Coalfields where the Court sought to streamline the process of appointment of judges of the High Court. The Court laid down a timeline for the appointment of judges and ordered that in case of reiteration of names by the Collegium, the government has to appoint the judges within 3-4 weeks.

Taking exception to this time-bound mandate, Mr. Rijiju had said that: "the Memorandum of Procedure (governing judicial appointments) does not specify that appointments have to be made in a limited time period. That has come up in the Mahanadi case for the first time. The larger question is, if it is not mentioned in the MoP then we have to take a call…If these kinds of judgments keep coming from the Supreme Court and High Courts we will have to go back to the Constitution and revisit the provisions of the Constitution and see." The Law Minister explained to the Houses that while it is difficult for him to make any assurances without having consulted other stakeholders in the issue, he had already received recommendations from the members of the Bar and the Bench seeking a relook at the present Collegium System that is "not transparent or accountable."

Supreme Court streamlines the process of appointment of high court judges

In the Mahanadi Case, the Court streamlined the process of appointment of judges and also laid down a timeline for the government to adhere in case reiteration of names by the Collegium. The judgment laid down that once the Supreme Court collegium reiterates the names, the Centre should make the appointment within 3-4 weeks of such reiteration. The court also specified a time-line to be followed for the appointment of judges and observed that it would be "advisable" to follow the timeline specified.

The judgment seems to have been followed more in its non-observance than compliance with the Advocates Association Bengaluru already having filed a contempt petition against the Central government for its delay in clearing reiterations within the set time-limit. How the contempt proceedings play out next year will be interesting to watch.

Another significant judgement on the process of appointment of judges came earlier this year in Lok Prahari v Union of India where the Court sought to streamline the process of appointment of ad-hoc judges of the high courts under Article 224A of the Constitution. While agreeing that the discretion of the High Court Chief Justice cannot be curtailed, the Court laid down 5 "trigger points" that would activate the operation of Art.224A- 1) If the vacancies are more than 20% of the sanctioned strength; 2) The cases in a particular category are pending for over five years ; 3) More than 10% of the backlog of pending cases are over five years old; 4) The percentage of the rate of disposal is lower than the institution of the cases either in a particular subject matter or generally in the Court and 5) Even if there are not many old cases pending, but depending on the jurisdiction, a situation of mounting arrears is likely to arise if the rate of disposal is consistently lower than the rate of filing over a period of a year or more.

Transfer of High Court judges

The transparency, or the lack of it, of the Collegium System has been much debated this year. The Collegium's recommendation in November to transfer the sitting Chief Justice of the Madras High Court Justice Sanjib Banerjee to the Meghalaya High Court invited much approbation from legislators, lawyers, retired judges. Practising lawyers of the Madras High Court wrote a letter to the Chief Justice of India expressing their anguish over the abrupt transfer asking "why a competent and fearless judge has been transferred." Chief Justice S.Banerjee's transfer was not a one-off instance. This year also saw a record high transfer of High Court judges. In the months of September-October itself, around 32 judges were transferred. In this light, retired Justice of the Supreme Court, Madan B Lokur urged the government to abolish the system of transfer of judges to protect the independence of the institution.

This isn't the first instance of Collegium's decision to transfer high judges that has raised eyebrows and attracted criticism. In the past too the transfers of Chief Justices of Delhi High Court and Madras High Court had raised questions over the manner in which Collegium functions. Since the Collegium does not make the reasons for decisions public, its decision to transfer selectively raises doubts that such orders are punitive in nature. The opaqueness and 'arbitrariness' of Collegium's decision comes to surface not only when it transfers high court judges or recommends names for elevation but also when it selectively chooses to overlook senior high court judges for elevation to the Supreme Court like in the case of Justice Kureshi. This year the transfer of Justice Sanjib Banerjee to another high court, with only months since retirement, has renewed calls for greater transparency in the decisions of the Collegium, more specifically that the reasons for its decisions be out in public domain.

The year also saw the worrying trend of the Executive splitting up Collegium resolution becoming more pronounced. As noted before, the year saw a rising trend of the Centre splitting up the collegium recommendations to clear certain names, while withholding approval of certain other names mentioned in the same Collegium resolutions. The selective tinkering with Collegium's recommendation has serious consequences on the independence of the judiciary.

Overall, in reflection, the year saw the renewed intention of the Collegium and the Executive to clear the mounting judicial vacancies at least in the higher judiciary. To the credit of the stakeholders in the process of judicial appointments, the pace of judicial appointments seems to have picked up some pace this year with a spate of recommendations being made. Efforts being made to strengthen the judiciary as an institution numerically has resulted in the judges-to-population ratio in India rising to 21.3 per million in 2021. At the same time, however, as the Law Minister's statement in the Parliament reveals, a total of 126 of 164 recommendations are pending with the Central Government with different departments. The strikingly high number of pending recommendations lend credence to the allegation of opposition members in the Parliament that the government is stone-walling Collegium recommendations. In defense, Mr.Rijiju had explained that there can never be absence of vacancies as the process itself takes time since it requires investigation by agencies like Intelligence Bureau. While efforts being made to make the institution strong numerically are laudable, the issue of diversity needs greater attention in the coming years. An institution that seeks to provide justice to 1.3 billion Indians of all shades and walks of life must reflect the same diversity in its character.