Who gets to be a High Court Chief Justice in India?

An Order of Precedence dated July 26, 1979, acts as a protocol list for functionaries and authorities in the Indian government. This order ranks the Chief Justices of High Courts in their respective jurisdictions as the sixth-most important office in the country.

Given that the position is so important, it is essential to recognise that transparency about the antecedents of judges is an essential part of the idea of an independent judiciary that enjoys public confidence.

To enable greater public confidence in the judiciary, the first of its kind dataset was released on September 17 – KHOJ, short for “Know your High Court Judges”. The dataset was launched at the National Law University Odisha by Chief Justice of India UU Lalit, Justice DY Chandrachud, Justice MR Shah and Orissa High Court Chief Justice S Muralidhar.

The dataset is available on Justice Hub, an open-source platform for data about the Indian justice system. The authors of this article were involved in the project.

About the dataset

There are a total of 27 files, of which 25 are dedicated to each High Court. There is one integrated file combining details of 1,708 judges from all High Courts.

The data files include personal, educational and professional information across 43 variables of all judges appointed since the inception of the collegium system on October 6, 1993 until May 31, 2021. The collegium comprises the senior-most Supreme Court justices and identifies judges for positions in High Courts and the apex court.

Appointing Chief Justices

The Chief Justice of a High Court is appointed under Article 217 of the Constitution pertaining to High Courts for states. Although technically, the appointment has to be made by the President in consultation with the Chief Justice of India and governor of the state, it is decided by a collegium of three senior-most judges of the Supreme Court.

The collegium sends its recommendation to the executive and the most the executive is entitled to do, as per established judicial decisions, is to request the collegium to reconsider a recommendation. The collegium is not bound to change its initial decision.

Range of data on Chief Justices

It is important to clarify that the dataset does not have the details of all Chief Justices of all High Courts appointed since October 6, 1993. It has the details of Chief Justices who were appointed as High Court judges after October 6, 1993. Thus, somebody who became a High Court judge before October 6, 1993, and became a Chief Justice after October 6, 1993, has not been included in the dataset.

For example, SN Phukan became a High Court judge in 1985 (Gauhati) and the Chief Justice of the Orissa High Court in 1996. He is not a part of the dataset.

Additionally, the dataset does not include judges who were only Acting Chief Justices. Acting Chief Justices have been included only if they have been appointed as Chief Justices later on. This has been done for statutory purposes, as Acting Chief Justices do not enjoy the same status as Chief Justices.

What the data shows

Studying the background of Chief Justices is a stark revelation of the privileges and marginalisation within the higher judiciary. A Chief Justice is a position of immense power and the doors to this office have been closely guarded, even more than the path to the higher judiciary.

For example, while judges from the service cadre constitute 43% of all judges appointed in the High Courts, only 4% of them have become Chief Justices. The service cadre refers to High Courts judges who are appointed from among the judicial officers in subordinate courts.

Further, among those from the service cadre appointed as Chief Justices, 57% have served in administrative posts of the High Courts before becoming a High Court judge. Judges from the Bar cadre – High Court judges appointed from among lawyers – constitute 96% of all Chief Justices.

While women make up 8% of all judges, they constitute only 7% of Chief Justices. Further, 90% of such women Chief Justices have been appointed since 2012.

Fifty-two per cent of the Chief Justices were not transferred even once before being appointed to the post. Twenty-eight per cent were transferred once before becoming a Chief Justice. Eighteen per cent of the Chief Justices were transferred multiple times before being appointed to the post. For 2% of the Chief Justices, data regarding their transfer was not ascertainable.

Judges from some High Courts have a much better chance of becoming Chief Justices than those from some other High Courts. Chief Justices appointed from Delhi and Madras High Courts constitute 8% each of all Chief Justices while Chief Justices appointed from the Jharkhand and Chhattisgarh High Courts constitute about 1% each of all Chief Justices.

Chief Justices have come from 20 High Courts and there are none from certain High Courts such as Tripura and Manipur. The bottom five High Courts contribute 8% of all Chief Justices and the top five High Courts contribute 37% of all Chief Justices.

Digital public good

The creation of the KHOJ dataset began with the Summer of Data programme in May 2021. It was led and managed by Agami, CivicDataLab and the Centre for Public Policy, Law and Good Governance of the National Law University, Odisha. Thirty-seven law students from across the country volunteered to co-create the dataset using official and publicly accessible data sources.

This month-long exercise was followed by several more months of standardising the variables and cleaning up the data entries. Again, professional volunteers and students helped create this corpus.

This dataset is openly available today and is thus a digital public good, which can be used by researchers, students and professionals to determine the diversity, administration and inner workings of India’s High Courts.

Rangin Tripathy is Professor of Law at National Law University Odisha and Director, Centre for Public Policy, Law and Good Governance. Smita Gupta is Weaver at Agami and Co-Lead, Open NyAI. Biswajeet Mishra is a student at National Law University Odisha and a member of the Centre for Public Policy, Law and Good Governance.

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Where are the women? A study of High Court judges in India offers a number of insights