15 percent of names proposed by Chandrachud Collegium for HC elevation weren’t cleared by Union

The Chief Justice of India leads the Collegium, a body of the seniormost judges of the Supreme Court responsible for recommending judges for appointment to higher courts. The top court’s judges are recommended by the full panel of five whereas recommendations for the High Court are proposed by the Chief and next two senior-most judges. 

In the two-year tenure of D.Y. Chandrachud, the Collegium led by him recommended 184 names to the higher judiciary. All 17 proposals for the Supreme Court were cleared by the Union. Out of 168 recommendations for the High Courts, only 142 were cleared by the Union (as of 22 November 2024). 

All Collegium resolutions are available in public domain and can be found on the Supreme Court’s website. After the Collegium proposes a name, the names are sent to the Union government for consideration. Once the Union clears the recommendations, the resolution is uploaded to the Department of Justice (DOJ) website. The judges are ultimately appointed in the name of the President of India. 

The Collegium system has been a point of contention between the executive and the judiciary. The Union has long criticised the process for lack of transparency. In 2015, the Supreme Court struck down the National Judicial Appointments Commission Act, a Union law which attempted to replace the Collegium system with a six-member commission consisting of the CJI, the next two seniormost judges of the Supreme Court, the Union Minister of Law and Justice and two eminent persons nominated by a committee consisting of the CJI, the Prime Minister and the Leader of Opposition. 

The Court has often expressed its displeasure with the government for delays in notifying recommendations, not appointing names despite reiterations and for leaving resolutions, particularly for High Court recommendations, in limbo. As the debate continues, the heart of the issue remains the large number of vacancies at the higher judiciary. As of 1 November 2024, there were as many as 352 vacancies across High Courts.

This article takes a data-based approach to recommendations and appointments during CJI Chandrachud’s tenure.* We also analyse these appointments on the yardsticks of gender and elevations from the Bar. 

The data for this article was manually compiled after skimming through all Collegium resolutions published on the Supreme Court’s website since Justice Chandrachud took over as Chief in November 2022. We then cross-checked these appointments with notifications on the DOJ’s website. In some instances, we found that the DOJ’s records were incomplete and not updated. To ensure accuracy, we cross-verified the names of appointees not listed on the DOJ website with High Court websites and reliable news portals. If readers come across data that contradicts our findings, we encourage you to share it with us so we can update our research.

All 17 Supreme Court recommendations were accepted 

 As seen in Figure 1 below, the Chandrachud-led Collegium recommended 17 judges to the Supreme Court—half the Court’s current sanctioned strength (34 at the time of writing). The Union appointed all of them. Some of the resolutions emphasised five broad parameters considered by the Collegium. They are: 

1. The seniority of the judges; 
2. Merit as demonstrated by the judgments and performance of the judges; 
3. Integrity; 
4. The need to ensure diversity in terms of region, gender and community; and 
5. The need for inclusion of marginalised and backward segments of the community.

When CJI Chandrachud assumed office, the sitting strength of the Supreme Court was 27 judges. To fill these vacancies, the Chandrachud-led Collegium recommended five names in December 2023. However, these names were not notified by the Union. The Collegium reiterated all five names on 31 January with two new recommendations. The Union finally accepted the original recommendations and all five judges took oath 51 days after their names were first proposed. Eleven days later, the two judges newly recommended also took oath, bringing the Court to its sanctioned strength of 34. 

Since then, the Union has been quick to notify the Collegium’s recommendations

Article 124(3) of the Constitution states that an advocate of the High Court practising for 10 years is qualified for appointment as a Supreme Court judge. However, in 75 years of the Court’s existence, only 10 judges have been elevated from the Bar. 

16 out of the 17 names recommended by the Collegium were High Court judges. The only person to be elevated from the Bar was Senior Advocate K.V. Viswanathan. Justice Viswanathan’s elevation is noteworthy since he is in line to be the 58th Chief Justice of India based on the seniority convention. The other Bar-elevated judge to become Chief in the current cohort is Justice P.S. Narasimha (appointed during CJI N.V. Ramana’s tenure). 

While the recommendations prioritised regional and caste diversity, they fared poorly on gender diversity. None of the 17 names recommended by the Chandrachud Collegium were women. With Justice Hima Kohli’s retirement in September, only two women judges remain at the top court.

Only 84.5 percent of High Court Collegium recommendations were cleared by Union

When CJI Chandrachud assumed office, there were 335 vacancies in High Courts across the country. The Allahabad High Court, with a sanctioned strength of 160 judges, had the highest number of vacancies and the High Courts of Meghalaya and Tripura, with just one vacancy each, had the least (their sanctioned strength is four and five judges, respectively).

The Chandrachud-led Collegium recommended a total of 168 judges for the High Courts.

The Madhya Pradesh High Court saw the highest recommendations, with 19 judges nominated and 14 appointed, 12 of whom were judicial officers. 

The Madras High Court recorded the highest number of appointments, with 16 judges appointed from a total of 17 recommendations.

The High Court of Sikkim functioned at its full sanctioned strength of three judges throughout CJI Chandrachud’s tenure and therefore, needed no recommendations. 

The High Courts of Calcutta, Jammu & Kashmir and Ladakh, Jharkhand, and Meghalaya, saw only one recommendation each. All of these recommendations received approval, except for Calcutta, which is yet to be cleared as of 22 November 2024. 

All Collegium recommendations for the following High Courts received Union approval: Gujarat (12), Telangana (3), Andhra Pradesh (9), Rajasthan (8), Chhattisgarh (5), Himachal Pradesh (3), Manipur (2), Orissa (2), Patna (4), Tripura (2). 

Overall, 142 names proposed for elevation to High Courts were cleared by the Union government. As CJI Chandrachud’s tenure ended, High Courts across the country had a total of 352 vacant seats.

Half of all High Court appointees were elevated from the Bar

As with elevations to the Supreme Court, High Courts can also have judges elevated from the Bar. According to Article 217, other than judges of the district judiciary, an advocate who has practised before one or more High Courts consecutively for at least 10 years can be elevated as a judge of a High Court.

Out of the 142 High Court judges appointed, 69 (48.6 percent) were elevated directly from the Bar. The remaining 73 were elevated from the district judiciary. 

In Punjab and Haryana and Meghalaya High Courts, all the appointees were from the Bar. In Delhi, none of the four advocates recommended were elevated.

41 appointments out of 47 Collegium recommendations

The Collegium recommended 47 names to be Chief Justices of various High Courts. Of them, the Union appointed 41 (87 percent). With Chief Justice appointments, we observed that the Union has, at times, displayed a tendency to delay notifying recommendations until the Collegium reassigns the judge to lead a different High Court than the one in its original recommendation.

For example, in July 2024, the Collegium recommended Justice Tashi Rabstan as Chief Justice of the Meghalaya High Court. However, he was eventually appointed as the Chief Justice of the High Court of Jammu & Kashmir and Ladakh after the Collegium changed its recommendation in September. A similar pattern is seen in the cases of Justices Suresh Kumar Kait and Dhiraj Singh Thakur, who currently serve as Chief Justices in Madhya Pradesh and Andhra Pradesh. 

In one instance, the Union did not appoint a judge even after the Collegium changed its recommendation. Justice G.S. Sandhawalia was recommended as Chief Justice of the Madhya Pradesh High Court in July 2024. Subsequently, in September, the Collegium changed its recommendation to Himachal Pradesh. The Union is yet to clear his recommendation. Additionally, Justice Narendra G.’s recommendation as Chief Justice of the Uttarakhand High Court remains pending (as of 22 November 2024). 

Only four women judges were appointed as Chief Justices—two in Gujarat, one in Uttarakhand and one in Himachal Pradesh. The next section highlights the lack of gender diversity across all High Courts.

Only 22 out of the 142 High Court elevations were women

CJI Chandrachud had cited the lack of sufficient senior women High Court judges as the reason for no elevations of women judges to the Supreme Court during this tenure. Commentators have countered that the Collegium has flouted the seniority norm on recent occasions to account for regional and religious representation. 

If the Chandrachud Collegium was committed to improving the representation of women judges in the High Courts, it is not reflected in the numbers. As seen in Figure 5 above, out of the 168 judges recommended by the Collegium, only 27 were women. Out of these, the Union appointed 22 judges. This means that among the 142 High Court judges appointed during the Chandrachud era, only 15 percent were women. In August 2024, the Supreme Court Observer reported that only 14 percent of judges in High Courts are women. 

In an interview with the Supreme Court Observer, former top court judge S.K. Kaul had said that even as the representation of women in district judiciary was improving, there were not enough women judicial officers in senior age brackets for the Collegium to consider for High Court appointment. 

As seen in Figure 3 above, the Madras High Court saw the highest number of women appointees during the Chandrachud tenure. Only 11 other High Courts out of the remaining 25 saw women being elevated. The gender gap was the starkest in Kerala—a single woman in the 15 appointees. 

The Union cleared the appointments of 81 percent of women judges as opposed to 85 percent of men judges. The Union did not clear the appointment of Chaitali Chatterjee for the Calcutta High Court. Of the seven names proposed for elevation in Gauhati, the Union appointed all except two women—Advocate Shamima Jahan and judge Yarenjungla Longkumer. Out of the 16 names recommended for Kerala, the one that was not cleared by the Union was of advocate Sreeja Vijaylaxmi.

Conclusion 

In the Chandrachud Court, the Collegium and the Union seemed to have been on the same page when it came to Supreme Court appointments. The Collegium was prompt in recommending names to fill vacancies and the Union was quick to notify appointments. This is noteworthy because resolutions have been delayed in the past tenures. For instance, in August 2021, nine judges were recommended for elevation by the CJI Ramana-led Collegium after a two-year hiatus. 

However, the High Court elevations paint a less optimistic picture, with the Union not clearing 15.4 percent of the Collegium’s proposals. This tension, too, has a history. The Union has often delayed notifying High Court appointments, with the Court having to remind the government that reiterated notifications cannot be ignored. 

During CJI S.A. Bobde’s tenure, the Court had held that if the Union had any reservations to Collegium recommendations, it had to resend the name to the Collegium with reasons for rejections. Subsequently, if the Collegium reiterated the names, they had to be notified within four weeks. In December 2022, the Court had stated that the Collegium’s recommendations have to be “followed to the T.”

There are, however, several moving parts to High Court appointments. For one, the recommendation process involves consultation with High Court judges, who may not always be forthcoming in proposing names for vacant positions. Second, the reason for 15 percent of the names not being notified cannot be attributed wholly to the Union—it could be that the Collegium simply did not reiterate some names. Third, vacancies are constantly being created in High Courts and it is challenging for the Collegium judges, who typically have full desks, to keep up with the pace of retirements. 

Both the judiciary and the Union seemed to have fared poorly in improving gender representation in the higher courts. In an interview just as he entered office in November 2022, CJI Chandrachud had unequivocally noted that seniority was not the only criteria for appointments, “It’s an evaluation of merits. We look at seniority, we look at integrity, we look at the need for regional representation, the need for diversity in terms of representation of the marginalised segments of society, gender diversity, representation to the minorities.” Yet, in the Supreme Court and the High Courts, performance has not matched promise on the key question of gender representation. 

*The analysis does not include Collegium recommendations for the transfer of judges, reiterations and recommendations to appoint additional judges as permanent judges.