Chief Justice Dipak Misra’s role as Master of the Roster was called into question by the other four judges in the Supreme Court collegium in January. While their complaint was about cases being “assigned selectively” to benches of “preference”, how have members of the collegium been represented in major cases (those with bench sizes of three or more)?
A look at the numbers since January 1999, when the collegium was expanded to five judges, is revealing. It shows that the representation of collegium members other than the CJI — that is, those ranked two to five — is among the lowest during Chief Justice Misra’s term.
Until January 12, when Justices J. Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurian Joseph held their unprecedented press conference, collegium members (two to five) were involved only in 29.3% of the judgments delivered. Of the 17 CJIs since January 1999, it was only during Justice G.B Pattanaik’s term as CJI that the representation of the four collegium members was less. At 29.2%, it was less only by the smallest of fractions.
Also, Justice Pattanaik was CJI only for just a little over a month, during which 24 judgments with benches of three or more judges were delivered.
At the other end of the spectrum, former CJIs H.L. Dattu (68%), R.M. Lodha (67.5%), K.G. Balakrishnan (55.1%) and A.S. Anand (63.5%) used other collegium members most in cases involving three judges or more, going by the judgment percentages. In Justice Misra’s case, the involvement of other collegium judges increased after the January 12 press conference; overall, as of July 31, it went up to 33.9%.
A comparative assessment of Chief Justices in terms of involvement of other collegium members in judgments involving bench sizes of three or more is presented in the accompanying table.
There were over 2,400 such judgments between January 1999 and July 2018, of which 224 were delivered by Constitution Benches — those with five judges or more.
The average representation for collegium judges (barring the CJI) in major cases was 52.1% for this period.
In nearly two-thirds of the cases referred to various benches (of three judges and above), Chief Justice Misra did not appoint a single Collegium judge other than himself.
In the five judgments delivered by Constitution Benches before Justice Chelameshwar’s retirement, no fellow member of the collegium was involved.
His retirement saw the inclusion in the collegium of Justice A.K. Sikri, who was a part of the Constitution Bench that delivered the judgment in the Govt. of Delhi vs. Lt. Governor case.
Many factors
Case allocation in the Supreme Court is based on a number of factors, largely related to the expertise of various judges.
But senior judges have generally been represented in higher numbers in benches numbering three and above.
The four collegium judges who complained about case allocation had felt that cases were allocated to junior hand-picked judges against the conventions of the court. The data here records how cases involving three judges or more were allocated by different CJIs since January 1999.
The methodology
Details of all judgments delivered by benches (with at least three judges) since 1999 were web-scraped from the Supreme Court of India’s website (http://sci.gov.in/judgments).
Many judgments listed in the website did not contain the bench composition. These were manually filled up after reconciling the data with bench information from Sushant Sinha’s indiankanoon.org data.
Using the dates of appointment and retirement of judges listed on the Supreme Court website, the rank of each judge was calculated algorithmically at the time of each judgment by comparing their appointment dates with other judges during their tenure.
Judges, whose rank was 2 to 5, were considered Collegium judges (Rank 1 was the CJI).
There could be a slight margin of error in the numbers as some benches may have been constituted by one Chief Justice of India, but judgments delivered under his successor. In such cases, they may have been accounted for under the latter’s name.