Comprehension means the unpremeditated, attentive facing up to, and resisting of, reality. The Supreme Court of India (‘SC’) has 26 Hon’ble Judges. It is difficult to comprehend the Highest Court of the Land and its Judges. The Supreme Court of the United States has 9 Judges who enjoy an appointment for a lifetime. In contrast, composition – character – nature of SC Judges changes frequently. He who decides and decides honorably must decide till he can decide honorably. Appointments of SC Judges is a maze that cannot be faced or resisted unless first understood. This is my attempt. If you lower your guard, you won’t be able to understand the mechanisms, symbols, choices. You risk not noticing anything. I must draw on all resources. I must find something that fuels the stomach of my soul – a root. I have learned to recognize the root in the eyes of those who have decided to stare certain powers in the face.
We are proud that three women are Hon’ble Judges of the SC – Hon’ble Justice R. Banumathi, Hon’ble Justice Indu Malhotra and Hon’ble Justice Indira Banerjee. Only twice before in history, between September, 2011 – April, 2014 and August, 2014 – October, 2014 two women were Hon’ble Judges of the SC at the same time. There are changing patterns of elevation / appointment as a SC Judge.
Hon’ble Chief Justice of India (‘CJI’), Hon’ble Judges Dipak Misra, J.S. Khehar, T.S. Thakur, and H.L. Dattu were CJI for 400, 235, 397, 430 days respectively. CJI, Hon’ble Judges Y.V. Chandrachud, M.H. Beg, A.N. Ray and S.M. Sikri were CJI for 2696, 388, 1373, 825 days respectively. It has been some time since we have had a CJI hold his position for more than thousand days. 37th CJI, Hon’ble Justice K.G. Balakrishnan, elevated eighteen years ago, was a CJI for 1214 days.
The most important pattern of elevation involves the choice of a CJI. On 3rd September, 2018 Senior Advocate Indira Jaising tweeted that the letter from Hon’ble Justice Dipak Misra to the Law Ministry, recommending Hon’ble Justice Ranjan Gogoi, as the next CJI, has gone out ‘on time’. Ever since the 1970s, the possibility of Supersession of Judges has feared most. 14th CJI, Hon’ble Justice A.N. Ray had apparently once said that many of those who have criticized Supersession ‘didn’t have the standing of a school leaving certificate.’ We remember the protest neighboring 15th CJI, Hon’ble Justice M.H. Beg. It is interesting how Hon’ble Justice Beg had been appointed as a SC Judge. In December, 1970 the SC did not have a Muslim Judge. Hon’ble Justice M.H. Beg was one of the Judges at Allahabad High Court. There were more than ten non-retired Judges of the High Court (‘HC’) who had been appointed before him. Himachal Pradesh gained statehood in 1971 and a new HC was created at Simla. Hon’ble Justice M.H. Beg was made the First Chief Justice (‘CJ’) of Himachal Pradesh HC on 25th January, 1971. Soon after, he was elevated. Age is no ingredient of Chief Justiceship.
Hon’ble Justice S.M. Sikri when appointed the 13th CJI had been a Judge for seven years. By that time, Hon’ble Justice A.N. Ray had been a Judge for fourteen years already. Experience is thus no ingredient too. Chief Justiceship is incidental.
At the present juncture, assuming there is no Supersession and each Judge retires on their designated date of retirement without any interference of health and hazard [1st CJI, Hon’ble Justice H.J. Kania had a Death in Office], the choice of a CJI is complete right on the date the Judge has just been appointed as a SC Judge. It is known whether the one elevated shall be a CJI someday or shall retire, paving way for a younger Judge. Most Judges retire without becoming CJI.
The Present CJI is Hon’ble Justice Ranjan Gogoi. It is known, the CJIs after him shall be Hon’ble Judges S.A. Bobde, N.V. Ramana, U.U. Lalit and Dr. D.Y. Chandrachud. Between Hon’ble Judges N.V. Ramana and U.U. Lalit there are four Judges who shall retire, paving way for Hon’ble Justice U.U. Lalit to be the 49th CJI. Since the 1990s, noting all appointments of Judges to the SC, how soon has each Future CJI been elevated?
The First CJI in the 1990s was the 29th CJI, Hon’ble Justice A.S. Anand. He was elevated / appointed as a SC Judge on 18th November, 1991. The 30th CJI, Hon’ble Justice S.P. Bharucha was appointed on 7th January, 1992. It had taken less than two months thus for us know who shall be the CJI after Hon’ble Justice A.S. Anand. In between only one other Judge had been appointed.
The 31st CJI, Hon’ble Justice B.N. Kirpal and the 32nd CJI, Hon’ble Justice G.B. Pattanaik were both appointed as a SC Judge on 9th November, 1995. It took three years, ten months thus for us to know who shall be the CJIs after Hon’ble Justice S.P. Bharucha. In between twelve other Judges had been appointed.
The 33rd CJI, Hon’ble Justice V.N. Khare was appointed as a SC Judge on 21st March, 1997. It took one year, four months thus for us to know who shall be the CJI after Hon’ble Justice G.B. Pattanaik. In between four other Judges had been appointed.
The 34th CJI, Hon’ble Justice Rajendra Babu was appointed as a SC Judge on 25th September, 1997. It took seven months thus for us to know who shall be the CJI after Hon’ble Justice Khare. In between only one other Judge had been appointed.
The 35th CJI, Hon’ble Justice R.C. Lahoti was appointed as a SC Judge on 12th September, 1998. It took about a year thus for us to know who shall be the CJI after Hon’ble Justice Rajendra Babu. In between only two other Judges had been appointed.
The 36th CJI, the First CJI in the 2000s, Hon’ble Justice Y.K. Sabharwal was appointed as a SC Judge on 28th January, 2000. It took one year, four months thus for us to know who shall be the CJI after Hon’ble Justice R.C. Lahoti. In between eight other Judges had been appointed, including Hon’ble Justice Ruma Pal. She was appointed on the same date as Hon’ble Justice Y.K. Sabharwal. Hon’ble Justice Ruma Pal could have been the first woman to be a CJI. However, despite her being older than Hon’ble Justice Y.K. Sabharwal, she was sworn some hours after him. That sacrificed her chances. Seniority is incidental.
The 37th CJI, Hon’ble Justice K.G. Balakrishnan was appointed as a SC Judge on 6th August, 2000. It took six months and some days thus for us to know who shall be the CJI after Hon’ble Justice Y.K. Sabharwal. In between only two other Judges had been appointed.
The 38th CJI, Hon’ble Justice S.H. Kapadia, was appointed as a SC Judge on 18th December, 2003. It took three years, four months thus for us to know who shall be the CJI after Hon’ble Justice K.G. Balakrishnan. In between thirteen other Judges had been appointed.
The 39th CJI, Hon’ble Justice A. Kabir was appointed as a SC Judge on 9th September, 2005. It took a little less than one year, nine months thus for us to know who shall be the CJI after Hon’ble Justice S.H. Kapadia. In between six other Judges had been appointed.
The 40th CJI, Hon’ble Justice P. Sathasivam was appointed as a SC Judge on 21st August, 2007. It took two years and a little more than eleven months thus for us to know who shall be the CJI after Hon’ble Justice A. Kabir. In between seven other Judges had been appointed.
The 41st CJI, Hon’ble Justice R.M. Lodha and the 42nd CJI, H.L. Dattu, like the 31st and 32nd CJI, were both appointed as a SC Judge on 17th December, 2008. It took one year, four months thus for us to know who shall be the CJIs after Hon’ble Justice P. Sathasivam. In between six other Judges had been appointed.
The 43rd CJI, Hon’ble Justice T.S. Thakur was appointed as a SC Judge on 17th November, 2009. It took eleven months thus for us to know the who shall the CJI after Hon’ble Justice H.L. Dattu. In between five other Judges had been appointed.
The 44th CJI, Hon’ble Justice J.S. Khehar was appointed as a SC Judge on 13th September, 2011. It took one year and a little less than ten months thus for us to know who shall be the CJI after Hon’ble Justice T.S. Thakur. In between, seven other Judges had been appointed.
The 45th CJI, Hon’ble Justice Dipak Misra was appointed as a SC Judge on 10th October, 2011. It took less than a month thus for us to know who shall be the CJI after Hon’ble Justice J.S. Khehar. In between only one other Judge, Hon’ble Justice Jasti Chelameswar, had been appointed on the same date as Hon’ble Justice Dipak Misra.
The 46th CJI, Hon’ble Justice Ranjan Gogoi was appointed as a SC Judge on 23rd April, 2012. It took a little more than six months thus for us to know who shall be the CJI after Hon’ble Justice Dipak Misra. In between only one other Judge had been appointed.
The Future CJIs after Hon’ble Justice Ranjan Gogoi, as indicated, Hon’ble Judges S.A. Bobde, N.V. Ramana, U.U. Lalit and Dr. D.Y. Chandrachud were appointed as a SC Judge on 12th April, 2013; 17th February, 2014; 13th August, 2014 and 13th May, 2016 respectively. Hon’ble Justice Dr. D.Y. Chandrachud shall be the 50th CJI. It has been two years, seven months, nineteen days since his appointment and we don’t know yet who shall be the 51st CJI. More time was required to find only the 31st, 32nd and 38th CJI. Also, in two years and seven months, fifteen other Judges have been appointed all of whom shall retire before Hon’ble Justice Dr. D.Y. Chandrachud. Never were so many Judges appointed before we knew who would succeed as CJI. The watch for the 31st, 32nd and 38th CJI was longer. However, less than fifteen Judges were appointed in the respective durations of that watch. There are changing patterns of elevation, as evident.
One wonders, who amongst the present HC CJs if elevated / appointed as a SC Judge, can be the 51st CJI. Here is a table of the High Courts in India as they were established, followed by the names of their Present CJs and their Dates of Birth.
Calcutta – Hon’ble Justice Biswanath Somadder, Acting Chief Justice, December 15, 1963
Bombay – Hon’ble Justice N.H Patil, April 7th, 1957
Madras – Hon’ble Justice V.K. Tahilramani, October 3rd, 1958
Allahabad – Hon’ble Justice Govind Mathur, April 14th, 1959
Karnataka – Hon’ble Justice, Dinesh Maheshwari, May 15th, 1958
Patna – Hon’ble Justice A.P. Sahi, Jaunary 1st, 1959
J&K – Hon’ble Justice Gita Mittal, December 9th, 1958
Madhya Pradesh – Hon’ble Justice S.K. Seth,June 10th, 1957
Punjab and Haryana – Hon’ble Justice Krishna Murari, July 9th, 1958
Gauhati – Hon’ble Justice A.S. Bopanna, May 20th, 1959
Orissa – Hon’ble Justice K.S. Jhaveri, January 5th, 1958
Rajasthan – Hon’ble Justice Pradeep Nandrajog, February 24th, 1958
Kerala – Hon’ble Justice Hrishikesh Roy, February 1st, 1960
Gujarat – Hon’ble Justice Anant Surendraray Dave, December 5th, 1957
Delhi – Hon’ble Justice Rajendra Menon, June 7th, 1957
Himachal Pradesh – Hon’ble Justice Surya Kant, February 10th, 1962
Sikkim – Hon’ble Justice Vijay Kumar Bist, September 17th, 1957
Chhattisgarh – Hon’ble Justice Ajay Kumar Tripathi, November 12th, 1957
Uttarakhand – Hon’ble Justice Ramesh Ranganathan, July 28th, 1957
Jharkhand – Hon’ble Justice Aniruddha Bose, April 11th, 1959
Meghalaya – Hon’ble Justice Mohammad Yaqoob Mir, May 28th, 1957
Manipur – Hon’ble Justice Ramalingam Sudhakar, February 14th, 1959
Tripura – Hon’ble Justice Sanjay Karol, August 23rd, 1961
Andhra Pradesh – Hon’ble Justice C. Praveen Kumar, Acting Chief Justice, February 26th, 1961
Telangana – Hon’ble Justice T.B. Radhakrishnan, April 29th, 1959
Considering the designated dates of retirement of the i) CJs of Bombay, Madhya Pradesh, Gujarat, Delhi, Sikkim, Chattisgarh, Uttarakhand, Meghalaya HCs – all born in 1957; ii) the CJs of Madras, Karnataka, J&K, Punjab & Haryana, Orissa, Rajasthan HCs – all born in 1958; iii) the CJs of Allahabad, Patna, Gauhati, Jharkhand, Manipur, Telengana HCs – all born in 1959; even if they are appointed as a SC Judge they cannot be the CJI after Hon’ble Justice Dr. D.Y. Chandrachud. Nonetheless, the CJs of Delhi HC and Rajasthan HC have recently been recommended for elevation. Only the CJs of Calcutta, Kerala, Himachal Pradesh, Tripura, Andhra Pradesh if elevated, can be CJI No. 51. The CJs of the HCs of Himachal Pradesh and Tripura are serving their Second HC; The CJ of Kerala is serving his Third HC; The CJs of Calcutta and Andhra Pradesh are Acting CJs and are serving their First HC.
Judicial function is to bring about a just determination guided by an effective weighing of interests. Judicial primacy in Judicial appointments is a facet of Judicial independence. It belongs to the Basic Structure of the Constitution. 46th CJI, Hon’ble Justice Ranjan Gogoi has often raised concern over the Centre sitting over recommendations of the Collegium (CJI and Four Senior-Most Judges). Hon’ble Justice Surya Kant was recommended to be the CJ of Himachal Pradesh HC in January, 2018. The Centre notified the appointment after nine months. Sitting Judge of the SC, Hon’ble Justice K.M. Joseph’s elevation recommendation was rejected at first. The Collegium had to reiterate. 43rd CJI, Hon’ble Justice Thakur has stated too that the Centre sits on recommendations for very long. 16th CJI, Hon’ble Justice Y.V. Chandrachud’s words: “Government tries artful persuasion, drops hints, and keeps egging you. No one is interested in having a Good Judiciary.”
Giving primacy to the Judiciary in appointments will work only on the underlying assumption of the fairness of the Judiciary. This may not always be the case. The Indian Court is surely political on occasions. The Collegium may differ in views. In 1973, 13th CJI, Hon’ble Justice S.M. Sikri had opposed the elevation of Hon’ble Justice Krishna Iyer because he had held the Office of a Cabinet Minister in Kerala. It was 14th CJI, Hon’ble Justice A.N. Ray who cleared his elevation and Hon’ble Justice Krishna Iyer proved to be a Good Judge. It cannot be assumed that the Collegium will always consider all relevant material. Primacy to the Judiciary may lead to separating the Judiciary from the Executive. It may not necessarily lead to the Best Judges, free from all influences.
The Collegium has the final say in the appointment of Judges and its decision is binding. While we await the appointment of the Future 51st CJI, we are aware of the Court’s difficulties within and without.
There is a pattern of elevation that deserves discussion and has remain unchanged over the years. There were HC Judges who were never appointed as a SC Judge, despite ability. 21st CJI, Hon’ble Justice Ranganath Misra was elevated from the Orissa HC in 1983. Since 1953, he was the first Orissa HC CJ at the SC. Seven previous Orissa HC CJs missed. Hon’ble Justice M.N. Chandurkar was appointed CJ of the Bombay HC in 1983. He was recommended for elevation by the 16th CJI, Hon’ble Justice Y.V. Chandrachud. 17th CJI, Hon’ble Justice P.N. Bhagwati refused the appointment. Hon’ble Justice Y.V. Chandrachud avoided discussing appointments with Hon’ble Justice P.N. Bhagwati after this. There was a Full Court Reference at the Supreme Court on 7th August, 2012 in the memory of Late Shri Prabha Shankar Mishra, Senior Advocate. Hon’ble Justice Prabha Shankar Mishra had served Four HCs. He had submitted a resignation in 1998 from the position of CJ of the Calcutta HC. He had criticized the way SC Judge were appointed. Hon’ble Justice Ajit Prakash Shah never made it to the SC, though he was qualified in every way. He had affirmed that sexuality was a matter of individual freedom and that impediment to the practice of homosexuality was discriminatory. After serving 3 HCs, he retired as the CJ of the Delhi HC in 2010. Hon’ble Justice Jayant Patel, a Senior Judge at Karnataka HC, resigned in 2017. He was perhaps disheartened for not having been appointed a CJ of a HC. Justice Patel had directed the Central Bureau of Investigation in the Ishrat Jahan Fake Encounter Case.
The SC is an institution every Indian requires. Since 1950, we have been awarded with 237 SC Judges. Each Judge has had to undergo his / her own journey while making it to the SC. I have, for now, cited certain patterns of their elevation. Why is the same important? All of us have a role in choosing the Prime Minister of our country. However, almost none of us have had any role in choosing those 237 Judges. Social media platforms offer an avenue for criticizing Judges. There are barely any words from us though fighting for a Judge’s elevation. The Judiciary has the primacy in that regard. Therefore, travelling since 1950, only in 2018 do we have three women as Hon’ble Judges of the Supreme Court; It has been eighteen years since a CJI has held his position for more than a thousand days; Fifteen Judges have been appointed after Hon’ble Justice Dr. D.Y. Chandrachud and none of them shall be the CJI after him; As has been true for long, there are always unsung heroes who are not appointed as a SC Judge. The SC had rejected the National Judicial Appointment Commission and the 99th Constitutional Amendment which sought to give Politicians and Civil Society their last word in the appointment of Judges to the Highest Courts. It must be debated again whether participation of Non-Judicial elements shall lead to structured bargaining in appointments as a SC Judge / elevations. Why must the SC in India operate as a country within a country, an empire within an empire? We hope for change.
The Last Word 