With a paradigm shift in access to data on Judges, the Supreme Court’s collegium may be on the cusp of transparency

FIRST, some good news.  On Saturday, the Chief Justice of India, Justice U.U.Lalit, along with his brother Judges at the Supreme Court, Justices D.Y. Chandrachud and M.R.Shah, and the Chief Justice of the Orissa High Court, Dr. Justice S.Muralidhar, released a dataset and a booklet, titled KHOJ (Know Your High Court Judges), which is likely to mark a paradigm shift in the quality of our access to data on high court judges.  The event was attended by other judges of the Orissa High Court, the Advocate General and senior members of the Bar. 

The KHOJ dataset is now available on Justice Hub, which is an open-source platform for data related to law and justice. 

Why is this a milestone in the collection of data on our Judges? 

The dataset, according to the team which created it, contains 27 files with 25 files dedicated to each High Court and includes personal, educational and professional information across 43 variables about all judges appointed between October 6, 1993 and May 31, 2021.  

The KHOJ data set is one integrated master file with details of 1708 judges from all the High Courts where the name of each judge appears only once.  In the High Court files, the name of a judge appears separately in the file of each High Court where he has served.  There is a codebook which explains each of the 43 variables and the range of responses in relation to each variable which have been captured in the dataset.

The date, October 6, 1993 is significant in our judicial history.  It marks the inception of the collegium system to recruit judges to the Higher Judiciary.  In the Supreme Court, the Chief Justice of India heads two collegiums : first, a five-member collegium consisting of himself and four senior more Judges to recommend judges to be appointed to the Supreme Court; second, a three-member collegium, to recommend judges to be appointed to the various high courts.  

Since its inception, however,  the collegium system has been under critical scrutiny by observers and scholars for its omissions and commissions.   One consistent criticism has been that the collegium never valued transparency in its decision-making.  The collegium never shared information about the merits of those being recommended for judgeships, except during a short period of time during the tenure of the former Chief Justice of India, Dipak Misra, after the historic press conference held by four senior-most dissenting Judges of the Supreme Court on January 12, 2018. 

Even during that short period of transparency, the collegium didn’t see any merit in sharing information about who were the candidates shortlisted by it, and who were not selected and for what reasons.  The lack of transparency in the selection process of Judges in the higher judiciary has led to many crisis moments, which only sullied its credibility.   

With the public at large not having any access to data on high court judges and those being elevated to the Supreme Court, the Supreme Court’s collegium had moved on, after every exposure of its decisions resulting in flawed selections and transfers or its inability to elevate those who were really meritorious, let alone  reiterate its good recommendations, in the face of resistance from the Executive. 

It may be too early to anticipate whether KHOJ is likely to mark a change in this way of erratic functioning by the collegium, but it is certain to open the doors of transparency, which will make the collegium take note of the march of history, and give way for openness at some point in the future.  

What explains our hope?  

The personal details which have been captured in the dataset include gender, date of birth, place of birth and other such background details.  The variables focussed on educational background cover schooling information, graduation subject, law college attended and post-graduation details.  The professional details include if the judge comes from the service or bar cadre, details of government and private empanelment, details of chambers they worked in etc.  There are other variables which track details of a judge’s career such as number of transfers, transfer destinations, designation as chief justice etc. 

This dataset has been created in a collaborative exercise involving the Centre for Public Policy, Law and Good Governance (National Law University, Odisha), Agami and CivicDataLab.     More than 30 students and 10 professionals participated in this exercise for over one year.  The launching pad for KHOJ was the ‘Summer of Data 2021’ programme where students from across the country curated the original data which then went through several rounds of cleaning and verification. 

The core philosophy behind building such a dataset, according to its creators, is the realisation that people of the country should have more information about judges whose decisions have such real impact on the lives of such people.  It is also hoped that the dataset will help researchers do further studies on the composition of our High Courts and also studies focused on linking judicial behaviour with the background of judges. 

Our past coverage

Here are some recent articles published by The Leaflet on the broader question of judicial accountability, and how it can be ensured: 

  •  In an opinion piece on July 1, Professor Rangin Pallav Tripathy elucidated why litigants should have adequate information about judges before deciding to approach the judicial system.
  • In an opinion piece on August 26, The Leaflet’s co-founder, and senior advocate, Indira Jaising questioned the silence of the outgoing Chief Justice of India, N.V.Ramana on the non-selection of Justice A.A. Kureshi to the Supreme Court and the non-appointment of Saurabh Kirpal to the Delhi High Court, despite the recommendation of the collegium in his favour.
  • On August 11, Paras Nath Singh explained why the appointment as a judge to the higher judiciary is still a mirage to most women lawyers and why it is unlikely to change in the near future.
  • On June 12, we carried the results of an empirical study which suggested that recruiting more judges is the only solution to judicial pendency. 

Highlights from our last week’s coverage

Ten reasons why the NRC exercise is both illegal and unconstitutional

In this explainer on September 10, Mohammad Wasim unravels why the legality and constitutionality of both the National Register of Citizens (NRC)  and the Citizenship (Registration of Citizens and Issue of National Identity Card Rules) 2003  are suspect.  The only proper course to prepare any list of Indian citizens, according to him, is to promulgate a law that specifically requires certain documents to prove citizenship. The law must be published widely, and should provide an adequate timeframe for compliance, and place the burden of sanctions for not complying, he says.

The challenge to Places of Worship (Special Provisions) Act, 1991 is misconceived

In this opinion piece, published on September 12, Wasim says that  the right of one person to freely practise their religion is subject to the right of another person to exercise the aforesaid freedom. The Act, thus, puts into practice a constitutional mandate, and it is unimaginable to term it as unconstitutional, he says.

Ten reasons why the Citizenship Amendment Act, 2019 is unconstitutional

In this explainer, published on September 11, Wasim says that though there are several constitutional infirmities in the proposed NRC exercise itself, when it combines with the CAA, it directly and inevitably puts mainly the Muslim citizens of India at the risk of losing citizenship. Hence, the same is discriminatory and falls foul of both Article 14 and the basic feature of secularism enshrined in the Constitution of India.

The Leaflet