A Decade Of Judicial Appointments
While there is a break from the past on Supreme Court appointments, the old rules persist, writes Abhinav Chandrachud.
Between 1950-2020, around 247 judges were appointed to the Supreme Court of India. Among them, 58 judges were appointed to the Supreme Court in the last decade alone (2010-2019), more than any other decade in history. By comparison, only 16 judges were appointed to the Supreme Court in the 1960s, less than half the total number of judges appointed in the past decade. Was the profile of the typical judge who came to the Supreme Court in the past decade similar to the judges who sat on the court in previous decades?
Over the years, there have been three informal, unwritten rules for appointing judges to the Supreme Court. Firstly, a judge cannot be appointed to the court below the age of 55. Secondly, a person cannot become a Supreme Court judge unless he or she is a very senior High Court judge, usually a High Court Chief Justice. Thirdly, judges will be appointed to the Supreme Court from the different states in such a manner so as to maintain a rough geographic balance on the court, with larger High Courts getting three seats on the Supreme Court, and smaller High Courts getting one seat on the court (or sometimes none). By and large, these three rules have continued to hold the field in the previous decade.
The Constitution does not contain any provision which says that a person below the age of 55 cannot be appointed to the Supreme Court. However, only 9 out of 247 Supreme Court judges, i.e., less than 4% of the court’s judges, have been appointed to the court at an age lower than 55. Justice PN Bhagwati was the youngest judge appointed to the court in its history at age 51.
After the decade of the 1970s, no judge has been appointed to the court below the age of 55.
The youngest judge appointed to the court between 2010-2019 was Justice NV Ramana, who was appointed at 56 years and 5 months, and who will become the Chief Justice in April, upon the retirement of Chief Justice SA Bobde. Since Supreme Court judges retire at the age of 65, the rule that a judge must be 55 years or older in order to be appointed to the Supreme Court ensures that no Supreme Court judge has a tenure of more than 10 years in office.
Similarly, the Constitution does not say that only High Court Chief Justices or very senior judges can be appointed as Supreme Court judges. However, the trend has been that advocates have very rarely been appointed to the Supreme Court directly from the Bar. One advocate was appointed directly to the Supreme Court in every decade barring the 1950s and 2000s: Chief Justice SM Sikri (1960s), Justice S. Chandra Roy (1970s), Justice Kuldip Singh (1980s), Justice Santosh Hegde (1990s). However, in the previous decade, a record number of lawyers were directly appointed as Supreme Court judges. Four judges were appointed, all from the Supreme Court Bar: Justice RF Nariman, Justice Uday Lalit (who will occupy the post of Chief Justice for a short while upon the retirement of Chief Justice Ramana in 2022), Justice L Nageswara Rao, and Justice Indu Malhotra.
However, despite the fact that a record has been broken in the previous decade, the number of lawyers appointed directly to the Supreme Court is still very low: less than 7% of the judges appointed to the court in the previous decade, and less than 4% of the total number of judges appointed to the Supreme Court, have been advocates. Further, only Delhi-based lawyers seem to have been appointed to the Supreme Court in the past decade.
The Constitution provides that three kinds of people can be appointed as Supreme Court judges – High Court lawyers of 10 years’ standing, High Court judges of 5 years’ standing, or “distinguished jurists”. No person from the “distinguished jurist” category has ever been appointed to the Supreme Court in its history. Instead, a rule seems to have now taken hold that in order to be considered eligible for elevation to the Supreme Court, one usually has to be a High Court Chief Justice. This is a rule of relatively recent vintage. Between 1950-1989, around 50% of the court’s judges were High Court Chief Justices, with most others being puisne High Court judges (i.e., judges who were not High Court Chief Justices). However, as the method of judicial appointments changed in the 1990s, with the advent of the “collegium system” (under which the Chief Justice and four senior judges appoint Supreme Court judges), the rule now increasingly is that a person has to be a High Court Chief Justice prior to his or her elevation to the Supreme Court.
Around 92% of the judges appointed from the High Courts to the Supreme Court were High Court Chief Justices in the previous decade – the highest proportion in the Supreme Court’s history. Only four High Court judges were appointed to the Supreme Court without holding the post of High Court Chief Justice in the previous decade – Justice Ranjana Desai, Justice S Abdul Nazeer, Justice Sanjiv Khanna, and Justice BR Gavai. An exception usually seems to have been made to the High Court Chief Justice rule in order to enhance the diversity of the Supreme Court by appointing a woman, a judge from a religious minority or a backward caste to the court.
As in previous decades, between 2010-2019, a strenuous effort was made to ensure that the judges of the Supreme Court reflected the regional diversity of India. Thus, no more than 10% of the judges appointed to the Supreme Court in that decade came from any one state or High Court. For instance, six judges were appointed to the court from Bihar, six from Delhi, six from the Bombay High Court, and so on. Five women were appointed judges of the Supreme Court in the past decade – more than in any other decade in history. Before 2010, only three female judges had ever been appointed to the court (Justice Fathima Beevi, Justice Sujata Manohar and Justice Ruma Pal).
However, despite this new record, less than 10% of the judges appointed to the court in the past decade were women – a sobering statistic.
Similarly, only around 12% of the judges appointed to the court in the past decade belonged to religious minorities, with only around 5% of the court’s judges being Muslims. Though the caste background of Supreme Court judges is not publicly available, it is encouraging to note that a Scheduled Caste judge will become the Chief Justice of India in 2025.
All in all, the past decade certainly does mark a break from the past. A historically high number of women and direct appointees made it to the Supreme Court. However, the old rules persist – despite finding no place in the Constitution, age, seniority and geographic diversity continue to hold the field when it comes to appointing judges to the Supreme Court.
Abhinav Chandrachud is an advocate at the Bombay High Court and the author of The Informal Constitution: Unwritten Criteria in Selecting Judges for the Supreme Court of India (OUP Paperback 2020). A Marathi version of this article was first published in the Loksatta.
The views expressed here are those of the author and do not necessarily represent the views of BloombergQuint or its editorial team.