Odisha lawyers’ boycott of High Court focuses attention yet again on opacity of collegium system

A controversy around names recommended by the Orissa High Court collegium to the Supreme Court for elevation as judges has created a furore among the state’s lawyers. The Orissa High Court Bar Association has been boycotting court since October 14, demanding that the collegium system be reformed. In response to this boycott, the Orissa High Court has initiated contempt proceedings against officer bearers of the Orissa High Court Bar Association and the various District Bar Associations.

Under the collegium system developed by the Supreme Court in 1993, the chief justice and two senior-most judges of the Supreme Court decide appointments to the High Courts.

The Orissa bar association had opposed the candidature of advocates who purportedly did not practice regularly in the Orissa High Court. The Orissa High Court collegium had recommended the names of eight lawyers to be appointed as judges. The Supreme Court collegium accepted one name and returned six names. The decision regarding about candidate was deferred.

While the merits of the Supreme 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 Supreme Court collegium by High Court collegiums.

Success rate

Over the last two years between October 2017 to October 2019, the Supreme Court collegium has accepted only 13% of the recommendations forwarded by the Orissa collegium. This is by far the worst acceptance rate among all High Court collegiums.

The High Court 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 Supreme Court collegium.

During this time, both High Courts have been operating at far below their sanctioned strength. The Orissa High Court 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 High Court have either retired or have been transferred but only one judge has been appointed.

In this period, the Orissa High Court collegium has recommended 24 names to the Supreme Court collegium out of which only three have been accepted (including a lawyer and a judicial officer in the resolutions this month).

Similarly, the Rajasthan High Court 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 High Court collegium has recommended 20 names for elevation out of which only four have been accepted.

Other courts

Compared to the success rate of the High Court collegiums in Orissa and Rajasthan, the collegiums in Uttar Pradesh, Kerala, Madras, Bombay and Karnataka have a success rate of over 70%. The case of Uttar Pradesh and Karnataka is especially remarkable considering the high number of recommendations forwarded by their collegiums: the Uttar Pradesh High Court collegium has forwarded 51 recommendations and Karnataka High Court collegium has forwarded 37 recommendations.

The Calcutta High Court 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 Supreme Court collegium.

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 Supreme Court collegium rarely gives reasons for its decisions. On 140 occasions over the past two years, the Supreme Court collegium has not accepted the recommendations made by the High Court collegiums. But it has given reasons only in relation to 14 such decisions.

In ten cases, the rejection was due to the candidates not having the required income level. On the other four occasions, the Supreme Court collegium cited age-related reasons. It is not know why the other 126 candidates were not accepted.

Understaffed High Courts

It is not that the High Courts are operating at a reasonable capacity. As of October 1, as many as ten High Courts have less than 60% of their sanctioned strength of judges. In fact, other than the High Courts of Manipur and Uttarakhand, which have a sanctioned strength of five and 11, none of the other High Courts have more than 80% of their sanctioned strength of judges. If High Courts with a sanctioned strength of less than 15 judges are excluded, High Courts in India on an average are operating with only 62% of their sanctioned strength of judges.

The collegiums of both the High Courts and the Supreme Court 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 High Courts are not operating at full strength.

The High Court collegiums are required to initiate the process of appointment by forwarding their recommendations to the Supreme Court collegium. At times, the High Court collegiums have failed to forward adequate recommendations. For example, even though the Andhra Pradesh High Court is operating at only 38% of its capacity and is short by 23 judges, the High Court collegium has forwarded only eight recommendations to the Supreme Court collegium.

Similarly, the Gujarat High Court collegium has sent only 13 recommendations even when it is operating at only 54% of their sanctioned capacity and is short by 24 judges.

This is not to contend that all candidates recommended by High Court collegiums ought to be suitable for appointment. But if a candidate has been found suitable by a High Court collegium, the Indian people deserve to know why that person was not appointed. When the High Courts in India are operating at only 64% of their capacity and the Supreme Court collegium still does not accept 38% of the recommendations forwarded by the High Court collegiums, the people deserve to know why the High Courts are not operating at 100% of their capacity.

Rangin Pallav Tripathy is a Fulbright Post-Doctoral Research Scholar at Harvard Law School.