With the appointment of two new judges to the Supreme Court, only one more vacancy is set to arise before the retirement of the incumbent Chief Justice of India Dr D.Y. Chandrachud, when Justice Hima Kohli retires on September 1, 2024. How has the composition of the court changed during his tenure?
—
THE Union government has notified the appointment of the Chief Justice of the High Court for Jammu and Kashmir and Ladakh Justice Nongmeikapam Kotiswar Singh and acting Chief Justice of the Madras High Court Justice R. Mahadevan as judges of the Supreme Court.
On July 11, the Supreme Court Collegium comprising the Chief Justice of India (CJI) D.Y. Chandrachud and Justices Sanjiv Khanna, B.R. Gavai, Surya Kant and Hrishikesh Roy had recommended the names of the two judges for their elevation as judges of the Supreme Court.
Justice Singh's appointment to the Supreme Court is historic since he is the first judge from Manipur to be appointed as the judge of the Supreme Court. He was appointed as judge of the Gauhati High Court on October 17, 2011.
“Justice Singh's appointment to the Supreme Court is historic since he is the first judge from Manipur to be appointed as the judge of the Supreme Court.
On the formation of the High Court of Manipur, he was transferred as a judge of that High Court from the Gauhati High Court. On February 12, 2023, he was appointed the 36th chief justice of the High Court for Jammu and Kashmir and Ladakh.
As a judge of a high court, he was due to retire on February 28, 2025. Now, he will retire in 2028 from the judgeship of the Supreme Court; since the retirement age of high court judges is 62, while for Supreme Court judges it is 65.
"His appointment as a judge of the Supreme Court will provide representation to the Northeast, and in particular, he will be the first judge from the state of Manipur to be appointed as a judge of the Supreme Court," the collegium had while recommending him.
High-court-wise representation is considered an "unwritten criterion" of the appointment of judges by the collegium.
Except for two judges, all judges' place of birth matches their parent high courts in the state. Considering this, a majority of the Supreme Court judges are from Bombay, Allahabad and Punjab & Haryana High Court, followed by Delhi, Gauhati, Karnataka, Madhya Pradesh, Tamil Nadu and Andhra Pradesh. There are also judges from Rajasthan, Chhattisgarh, Bihar, Gujarat, Uttarakhand, Kolkata, Manipur and Himachal Pradesh.
However, the proportionate geographical representation in the Supreme Court remains a matter of debate. For instance, Justice J.B. Pardiwala was born in Mumbai but his parent high court is Gujarat High Court because his family hails from Gujarat. Similarly, Justice Prasanna B. Varale was born in Karnataka but his parent high court is the Bombay High Court.
Even going by the set parameter, there is no representation of Jharkhand, Meghalaya, Orissa, Sikkim and Tripura high courts among the Supreme Court judges.
Justice Mahadevan belongs to a backward community from Tamil Nadu. He was appointed as a judge of the Madras High Court on October 25, 2013. He has been functioning as the acting chief justice at the Madras High Court since May 25, 2024.
Justice Mahadevan has superseded two judges of the Madras High Court, namely T.S. Sivagnanam and Justice S. Vaidyanathan who are presently posted as chief justices at the Calcutta High Court and the Meghalaya High Court respectively.
“Even going by the set parameter, there is no representation of Jharkhand, Meghalaya, Orissa, Sikkim and Tripura high courts among the Supreme Court judges.
Justice Sivagnanam was appointed as judge of the Madras High Court on March 31, 2009 and Justice Vaidyanathan was appointed as judge of the Madras High Court on the same day when Justice Mahadevan was appointed but the former is senior to the latter.
The collegium said that it gave precedence to the candidature of Justice Mahadevan overlooking the seniority factor because it wanted to ensure representation of the backward community. Justice Mahadevan will retire on June 9, 2028 from the Supreme Court.
But the proportion of Supreme Court judges who happen to be members of Scheduled Castes is still considerably lower than the estimated percentage of Scheduled Castes population in the total population of India.
In 2019, the Supreme Court of India got a judge from the Scheduled Castes for the first time in a decade in the form of Justice Gavai. At that time, the Supreme Court had, for the first time in history, explicitly cited correction of caste misrepresentation as a factor for his appointment. His appointment had, therefore, been given precedence over the three senior-most judges from the Bombay High Court.
Another current Supreme Court judge from historically marginalised communities is Justice M.M. Sundaresh, who belongs to an Other Backward Class. There is no judge of any Scheduled Tribe communities in the Supreme Court at present.
With these two appointments, the Supreme Court will function at its full strength of 34 till September 1, when Justice Hima Kohli retires.
Eleven Supreme Court judges have retired during the tenure of CJI Chandrachud. They are Justice S. Abdul Nazeer; Justice Dinesh Maheshwari; Justice M.R. Shah, Justice K.M. Joseph, Justice Ajay Rastogi, Justice Justice V. Ramasubramanian, Justice Krishna Murari, Justice S. Ravindra Bhat, Justice Sanjay Kishan Kaul, Justice Aniruddha Bose and Justice A.S. Bopanna.
The collegium headed by CJI Dr Chandrachud has recommended 17 judges to the Supreme Court until now, including the two current names.
“With these two appointments, the Supreme Court will function at its full strength of 34 till September 1, when Justice Hima Kohli retires.
Two judges of the Supreme Court who retired during the tenure of CJI Chandrachud, Justice S. Abdul Nazeer and Justice K.M. Joseph, belong to minority religious communities. The collegium headed by CJI Chandrachud has recommended two judges from minority religious communities, namely Justice Ahsanuddin Amanullah and Justice Augustine George Masih.
The Supreme Court has not had a Sikh judge since August 27, 2017, when the then CJI J.S. Khehar retired. The last time the Supreme Court had judges from all religious communities was during the tenure of CJI Khehar, who was also a part of the Bench comprising Justice Kurian Joseph, Rohintan Nariman, U.U Lalit, and Abdul Nazeer that heard the triple-talaq case.
At present, there are three women judges in the Supreme Court, namely Justice Hima Kohli, Justice B.V. Nagarathna and Justice Bela Trivedi. All three of them were appointed on August 31, 2021 on the recommendation made by the collegium headed by the then CJI N.V. Ramana. This is only 8.8 percent of the total sanctioned strength of 34 judges in the Supreme Court.
Notably, the average tenure of male judges at the Supreme Court is much higher than female judges. For instance, Justice Satish Chandra Sharma will be a Supreme Court judge for three years and 21 days— the minimum among male judges. CJI Chandrachud will have a tenure of eight years and 182 days as a judge of the Supreme Court— the highest among male judges.
On the other hand, Justice Kohli will serve a maximum of three years and 2 days as a judge of the Supreme Court, the lowest among female judges. This is followed by Trivedi, who will spend a maximum of three years and 283 days as a judge of the Supreme Court. Justice Nagarathna will spend six years and 60 days as a judge of the Supreme Court. She is also in line to become the CJI in 2027 for a short period of 36 days.
The reason for this difference in tenure is that women climb every single rung of the judicial ladder later in their lives as compared to men, weighed down by glass ceilings and social factors.
Among the 17 Supreme Court judges brought on board by the collegium headed by CJI Chandrachud, there is not a single woman.
There is also no representation in the Supreme Court and high courts based on gender identity and sexual orientation.
In 2017, the Delhi High Court Collegium recommended the elevation of senior advocate Saurabh Kirpal as the judge of the Delhi High Court. It was approved by the Supreme Court Collegium in 2021. However, on November 25, 2022, the government sent back the name to the collegium for reconsideration. On January 18, 2023, the Supreme Court collegium reiterated the appointment. However, the government seems to be sitting over it.
Also read: Justice Sarangi could have served six months as Jharkhand HC chief justice, now he will two weeks
Last year, CJI while welcoming 75 new judicial officers from Maharashtra, termed it a "sign of changing time" that 42 out of 75 officers were women and remarked that in a decade or two, half of the Supreme Court and high court judges could be women.
“Among the 17 Supreme Court judges brought on board by the collegium headed by CJI Chandrachud, there is not a single woman.
However, it seems that it is going to take another few decades for a person from the LGBTQI+ community to become a part of the Supreme Court.
It remains to be seen whether the vacancy that will arise on the retirement of Justice Kohli on September 1 will be filled by the collegium headed by CJI Dr Chandrachud or whether he will leave it for his successor Justice Sanjiv Khanna who will take over as CJI on November 10, 2024.