A controversy around names recommended by the Orissa HC collegium to the Top Court for elevation as judges has created a furore among the state’s lawyers. The Orissa HC Bar Association has been boycotting court since October 14, demanding that the collegium system be reformed. In response to this boycott, the Orissa HC has initiated contempt proceedings against officer bearers of the Orissa HC Bar Association & the various District Bar Associations.
Under the collegium system developed by the Top Court in 1993, the chief justice & two senior-most judges of the SC decide appointments to the HCs.
The Orissa bar association had opposed the candidature of advocates who purportedly did not practice regularly in the Orissa HC. The Orissa HC collegium had recommended the names of eight lawyers to be appointed as judges. The Top Court collegium accepted one name & returned six names. The decision regarding about candidate was deferred.
While the merits of the Top Court collegium’s decision may be debated, this conflict has highlighted an interesting issue in the higher judiciary in India: the acceptance rate of recommendations forwarded to the Top Court collegium by HC collegiums.
Success rate
Over the last two years between October 2017 to October 2019, the Top Court collegium has accepted only 13% of the recommendations forwarded by the Orissa collegium. This is by far the worst acceptance rate among all HC collegiums.
The HC collegium with the second-worst acceptance rate is Rajasthan. Over two years, only 20% of the recommendations forwarded by the Rajasthan collegium have been accepted by the Top Court collegium.
During this time, both HCs have been operating at far below their sanctioned strength. The Orissa HC has a sanctioned strength of 27 but it currently has only 13 judges, excluding the chief justice. Over the last two years, five judges from the Orissa HC have either retired or have been transferred but only one judge has been appointed.
In this period, the Orissa HC collegium has recommended 24 names to the Top Court collegium out of which only three have been accepted (including a lawyer & a judicial officer in the resolutions this month).
Similarly, the Rajasthan HC is operating with a roster of 21 judges, excluding the chief justice, against a sanctioned strength of 50 judges. Over the past two years Rajasthan HC collegium has recommended 20 names for elevation out of which only four have been accepted.
Other courts
Compared to the success rate of the HC collegiums in Orissa & Rajasthan, the collegiums in Uttar Pradesh, Kerala, Madras, Bombay & Karnataka have a success rate of over 70%. The case of Uttar Pradesh & Karnataka is especially remarkable considering the high number of recommendations forwarded by their collegiums: the Uttar Pradesh HC collegium has forwarded 51 recommendations & Karnataka HC collegium has forwarded 37 recommendations.
The Calcutta HC collegium also has a high acceptance rate of 68% in response to the 34 recommendations it has forwarded.
This table below shows the success rate of collegiums that have made a minimum of 10 recommendations to the Top Court collegium.
High Court collegium acceptance rate %
Allahabad 82%
Bombay 72%
Calcutta 68%
Delhi 69%
Gujarat 62%
Karnataka 70%
Kerala 80%
MP 50%
Madras 76%
Orissa 13%
Patna 36%
Punjab and Haryana 60%
Rajasthan 20%
In ten cases, the rejection was due to the candidates not having the required income level. On the other four occasions, the Top Court collegium cited age-related reasons. It is not know why the other 126 candidates were not accepted.Does this dramatic difference in success rates reflect the quality of recommendations being made by the collegiums? We do not know for sure because the Top Court collegium rarely gives reasons for its decisions. On 140 occasions over the past two years, the Top Court collegium has not accepted the recommendations made by the HC collegiums. But it has given reasons only in relation to 14 such decisions.
Understaffed HCs
It is not that the HCs are operating at a reasonable capacity. As of October 1, as many as ten HCs have less than 60% of their sanctioned strength of judges. In fact, other than the HCs of Manipur & Uttarakhand, which have a sanctioned strength of five & 11, none of the other HCs have more than 80% of their sanctioned strength of judges. If HCs with a sanctioned strength of less than 15 judges are excluded, HCs in India on an average are operating with only 62% of their sanctioned strength of judges.
The collegiums of both the HCs & the SC have a responsibility to ensure that vacancies are filled up in time. Since the judiciary has so dominantly asserted its power to appoint judges, it must also bear the onus of clarification when the HCs are not operating at full strength.
The HC collegiums are required to initiate the process of appointment by forwarding their recommendations to the Top Court collegium. At times, the HC collegiums have failed to forward adequate recommendations. For example, even though the Andhra Pradesh HC is operating at only 38% of its capacity & is short by 23 judges, the HC collegium has forwarded only eight recommendations to the Top Court collegium.
Similarly, the Gujarat HC collegium has sent only 13 recommendations even when it is operating at only 54% of their sanctioned capacity & is short by 24 judges.
This is not to contend that all candidates recommended by HC collegiums ought to be suitable for appointment. But if a candidate has been found suitable by a HC collegium, the Indian people deserve to know why that person was not appointed. When the HCs in India are operating at only 64% of their capacity & the Top Court collegium still does not accept 38% of the recommendations forwarded by the HC collegiums, the people deserve to know why the HCs are not operating at 100% of their capacity.
by Rangin Pallav Tripathy
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