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...

2021-The Year in Review: Judicial Appointments and Transfers

Sneha Rao

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