J. Vineet Saran, J. K.M. Joseph and J. Indira Banerjee were administered oath on 7th August 2018. This set of appointments has been in news for a variety of reasons including the alleged role of the government in compromising the seniority of J K.M. Joseph. However, these appointments are also important from a routinely overlooked perspective. While J. Banerjee and J. Joseph will have tenure of 1508 and 1774 days respectively, J. Saran will be in office for only 1372 days. Not a single one of the proposed appointees will serve the office for even 5 years. This is quite in tune with the trend of appointments by the collegium.
Shorter Tenure of SC judges under Collegium
There is a difference of 449 days on a comparison of the tenure of Supreme Court judges appointed by the executive and the collegium (all judges who retired by 27th May 2017 covered in the study). Judges appointed by the collegium spend 25% less time in the Supreme Court compared to the appointees of the executive. Barring death in office or resignation, the average tenure of a collegium appointee so far has been 1799 days and the average tenure of an executive appointee was 2248 days. Of the top 20 judges having the longest completed tenure in the Supreme Court, only 3 have been appointed by the collegium.
The shorter tenure of judges also means that the collegium has had to appoint judges more frequently. The executive appointed 109 judges in 46 years. The collegium in its first 24 years, has appointed 91 judges.
All this has meant that judges spend more time in the High Court before being appointed to the Supreme Court than they did earlier. On an average, the collegium appoints a High Court judge to the Supreme Court only after a judgeship of 5108 days. The corresponding figure for judges appointed by the executive was 4463 days. That’s a difference of over 21 months.
It is not clear whether this has been the result of a deliberate shift in the recruitment policy by the collegium or just the unintended consequence of any other policy the collegium might have developed. It has been less than a year since the collegium started publishing the minutes of its meetings. These minutes provide a brief, if uncertain insight into the reasoning of the collegium behind various decisions. Earlier to that, there was absolutely no institutionalised access to the dynamics of collegium’s decision making. There is nothing on record which acknowledges that the shift in the pattern of judicial tenure is based on any deliberated policy.
Uncertain Merits and Demerits
The merits and demerits of this development are also debatable. On the one hand, it can be argued that more judicial experience in the High Courts would prepare judges better for their responsibilities as a judge of the Supreme Court. It would possibly provide them with more time to acquaint themselves with the nuances of the judicial process from the perspective of a judge. It would also enable them to hone for longer, the essential skills of judgeship.
On the other hand, the impact of shorter tenure on judicial decision making needs to be examined. Frequent changes in the composition of the court obviously raise the issue of stability and continuity of institutional policy and practices. Continuous change in personnel is not considered ideal for the efficiency of any organization and the judiciary is unlikely to be immune from that effect.
We also need to ask if greater length of service in the High Courts is an appropriate preparation for judgeship in the Supreme Court or if appointees would benefit more from a longer tenure in the Supreme Court.
Data-Driven Inquiry on Collegium’s functioning
While a there has been extensive and almost endless discussions on the constitutionality of the collegium system, there has hardly been any sustained data-driven inquiry into the functioning of the collegium. The shift to collegium system of appointment was a momentous one. Thus it is imperative to assess the consequences of this shift beyond the confines of theoretical legal norms.
The Supreme Court of India is one of the most power judicial institutions in the world. It’s the guardian of the fundamental rights guaranteed under the constitution. Almost every aspect of its functioning is a legitimate public concern. When we encounter obvious systematic changes in the appointment process, we must explore the consequences of the change, more importantly, we must first ascertain if the changes are by design or by accident.
Rangin Pallav Tripathy is faculty at National Law University Odisha. The data and the graphs have been sourced from the research paper co-authored by Rangin Pallav Tripathy and Gaurav Rai titled titled “Judicial Tenure: An Empirical Appraisal of Incumbency of Supreme Court Judges” published in Approaches to Justice in India- A Report by DAKSH (2017). The paper can be accessed here.