Opinion In defence of Supreme Court Collegium: It is fulfilling need for diversity — questioning it only undermines the judiciary

At present, there are eight high courts, which do not have representation in the SC. These include: (i) Rajasthan High Court [sanctioned strength of 50 judges], (ii) Orissa High Court [sanctioned strength of 33 judges], (iii) Jharkhand High Court [sanctioned strength of 25 judges]; (iv) Jammu and Kashmir High Court [sanctioned strength of 17 judges]; (v) Tripura High Court [sanctioned strength of five judges]; (vi) Manipur High Court [sanctioned strength of five judges]; (vii) Meghalaya High Court [sanctioned strength of four judges], and (viii) Sikkim High Court [sanctioned strength of three judges]. There is a grave necessity to appoint judges from some of these high courts, if not from all of them, since the number of existing vacancies in the SC would not permit appointments from each of these.

The Allahabad High Court, which has the highest sanctioned strength of 160 judges, is presently represented by only three judges in the Supreme Court; the Bombay High Court, which has the second-highest sanctioned strength of 94 judges is represented by three judges; the Punjab and Haryana High Court, which has the third-highest sanctioned strength of 85 judges, is represented by only two judges. The Madras High Court, which has a sanctioned strength of 75 judges is represented by only one judge in the SC. On the other hand, the Delhi High Court, which has a sanctioned strength of 60 judges, is presently represented by four judges. The possible appointment of Justice Muralidhar to the SC would invade the representation of other such high courts.

The recent appointments in the Supreme Court also fulfil the desirability of having representation of all states. For instance, prior to the appointments of Justice Sanjay Karol [February 2023], Justice P V Sanjay Kumar [February 2023], Justice Ahsanuddin Amanullah [February 2023], Justice P K Mishra [May 2023], and Justice S V Bhatti [July 2023], their parent high courts of Himachal Pradesh, Telangana, Patna, Chhattisgarh, and Andhra Pradesh, respectively, were not represented. Further, appointments from the Bar were also made to ensure appropriate representation.

The SC is a kaleidoscopic representation of the country as a whole, encompassing metropolitan cities, smaller towns and villages. It is in the true sense, a Supreme Court of and for India. It is represented by judges who come from various sections of society, not necessarily limited to metropolitan cities. The considerations for appointment to the apex court certainly require factors, such as merit and overall seniority of the nominee judge. However, these factors further converge with the requirement of appropriate representation from various high courts. Apart from the necessity of states’ representation, the Collegium has to consider other aspects as well, such as gender-based representation, representation of religious minorities, or marginalised classes. For instance, at present, there is no representation of Sikh, or Christian minorities in the Supreme Court. Out of the 32 judges in the SC, only three are women. There needs to be more representation of judges belonging to marginalised and weaker sections of society. It is not that the judges mentioned above are brought in for paying lip service. Judges from myriad backgrounds, castes, religions and genders bring with them perspectives which help in the evolution of new jurisprudence and the consequent advancement of law.

A visit to any high court would show that judges work in difficult conditions burdened by countless matters on their daily board. The judges working in high courts continue to discharge their duties only with the object of upholding their constitutional oath, unaffected by the lack of recognition, and the absence of praiseworthy articles or live streaming. This is a reflection of their unwavering dedication to uphold the rule of law, without the expectation of moving to a higher court.

The Collegium, at present, consists of the Chief Justice of India and four senior-most judges, three of whom would hold the office of the Chief Justice of India in the future. It is impossible to imagine that the present Collegium would have an oblique motive or reason for not elevating Justice Muralidhar. The Collegium, while performing its constitutional duty, cannot openly defend its decisions, or answer questions with respect to each appointment made by it. Being aware of its responsibilities, the Collegium transparently indicates reasons in its resolutions. It undoubtedly carries out due diligence, and fairly peruses material available before it to determine the suitability of appointment of a candidate as a judge of the Supreme Court.

The opinion of a citizen or a group, however strong, regarding the suitability of appointment of any particular candidate to the Supreme Court, cannot overshadow the wisdom of the Collegium. Any reading between the lines in the decisions of the Collegium would diminish the role of an important pillar of democracy. The Collegium, while considering various aspects for appointments to the Supreme Court, certainly displays its allegiance to the Constitution of India, guided by the goal of maintaining a strong judicial system and of adequate representation from across India in all forms.

The writer is senior advocate, Supreme Court of India