Of Judicial Retirements and Elevations

In the current Monsoon Term, two Supreme Court judges are set to retire. Justice R. Banumathi will serve until 19 July, while Justice Arun Mishra’s term ends on 2 September.

With their retirements, the Supreme Court will be reduced to 30 out of a possible 34 judges. Given the Court’s massive workload, should we expect elevations later in 2020?

In this post, we probe this question by surveying the data on retirements and elevations for the past five years.

More on how the Supreme Court appoints judges, via its Collegium System here.

In which months are judges generally elevated? And what about retirements?

In the past five years, certain months were more likely to see elevations than others. As the graph below indicates, there were four periods in the year that had the highest average number of elevations: February, May, August-September, and November.

These periods appear to be dependent on the Court’s vacation schedule. In months where the Court had major holidays, there were hardly any elevations. The Court has major vacations in March, June-July, October-November, and December-January.

It is more difficult to ascribe a pattern to judge retirements, as they are simply the result of superannuation. Judges retire when they turn 65 years old. However, when viewed in relation to elevations, retirements can begin to offer insights. For example, we can ask, do elevations follow retirements?

Retirements as a predictor of elevations

From our preliminary analysis, we found that elevations generally do not occur in the same month as a retirement. In effect, it is unlikely a judge will be elevated in July when Justice Banumathi retires.

Looking at the data for the past five years, we averaged the number of elevations that occurred on the same month as a retirement. For example, in 2015, the average was 0. There were no elevations in the months with retirements: March and December. When we look at the entire five years, the average increases only marginally to 0.26. Between 2015 and 2019, there were only two months that saw both retirements and elevations:

August 2017: 1 retirement (Justice PC Pant), 1 elevation (Justices JS Khehar)
November 2018: 1 retirement (Justice K Joseph), 4 elevations (Justices H Gupta, RS Reddy, MS Shah and A Rastogi)

This average rises, when we factor in a slight delay. Judges are more likely to be elevated to the Supreme Court in the month following a retirement, rather than the month of the retirement itself.

We averaged the number of elevations in the month following a retirement and found it to be 1. On an average month, following a month with a retirement, there is a judge elevated to the Supreme Court.

So, should we expect the Supreme Court to elevate judges in August and October this year, the months following Justices Banumathi and Mishra’s retirements? Despite the above average, probably not.

Firstly, the Supreme Court rarely elevates a single judge at a time. Instead, it generally elevates judges in batches. In the past five years, 7 out of 10 months that saw elevations, had elevations of more than one judge. For example, September 2019 saw four new Supreme Court judges assume office.

Secondly, as our graph above shows, October is an improbable month for elevations due to the Dussehra and Diwali holidays. In fact, the last time a judge was elevated to the Supreme Court in October was in 2011 (CJI Dipak Misra).

So if we are to see an elevation in 2020, this only leaves us with November and December. And since December like October hasn’t seen an elevation in the past five years, the only viable candidate is November.

New Judges in November 2020?

Relying on the above analysis alone, the most likely candidate for elevations to fill vacancies left by Justices Banumathi and Mishra is November.

However, other key parameters come into play such as the politics between the Supreme Court Collegium and Union Law Ministry, and the ongoing COVID-19 epidemic. Perhaps we’ll have to wait till next year, to see the next round of elevations.

We will be eagerly keeping an eye on the Supreme Court Collegium. After all, the Court won’t want to wait too long. By 13 March 2021, it will be reduced to only 29 judges with Justice Indu Malhotra’s retirement. Given its massive docket and the Law Ministry’s unhurried approach, the Court will surely be eager to push through a fresh set of elevations.

Access the data here.