By the end of September this year, there will be four vacancies at the Supreme Court of India, with the retirement of Justices R Banumathi and Arun Mishra.
In this light, it is worth taking a look at which judges of the High Court are most likely to move up to the Supreme Court.
As we have seen in the past, it not necessary that only Chief Justices of High Courts are elevated; puisne judges have often superseded them. However, given the seniority rule that is generally followed, Chief Justices have a better chance of being elevated to the Apex Court.
There is a vacancy to fill 4 Judges in the Supreme Court.
Here is an analysis of who has the best chance to be the next Supreme Court judge from the existing pool of High Court judges. It is important to note that the individual merit of each judge has not been delved into; rather the list has been compiled on the basis of their seniority and the Parent High Court representation at the Supreme Court.
It will also be interesting to find out whether a woman Chief Justice of India is a possibility in the near future.
Currently, there are 688 judges in High Courts across the country, out of which 80 of them are women, accounting for 11.6% of the total strength. Out of these, only one woman is currently Chief Justice of a High Court.
The Supreme Court currently has three-woman judges, and that number will drop to two when Justice Banumathi retires on July 19.
Despite all of this, there still might be a chance of having a woman CJI in the future. More on that later.
All data used is compiled from the data updated by the Department of Justice as on July 1, 2020.
Seniority list of Chief Justices of High Courts
Below is the seniority list of the Chief Justices of the 25 High Courts:
Apart from seniority, the Parent High Court of the judge and representation at the Supreme Court are other factors.
The following map shows the current representation at the Supreme Court, based on the Parent High Courts of the sitting judges.
The High Court of Bombay is the most richly represented at the Supreme Court, with 4 judges. The High Courts of Allahabad, Delhi, and Karnataka have 3 judges each, whilst High Courts like Gujarat, Madhya Pradesh, Kerala, etc have 1 each.
Here is the detailed representation of the Parent High Courts at the Supreme Court currently:
4 - The Bombay High Court is the Parent High Court for four judges, the most at the Supreme Court.
3- The High Courts of Allahabad, Delhi, and Karnataka are Parent High Courts for nine judges (3 each).
2- The High Courts of Calcutta, Madras, Punjab & Haryana, and Rajasthan are Parent High Courts for 2 judges each.
1- The High Courts of Andhra Pradesh, Kerala, Madhya Pradesh, Gauhati, Gujarat, Patna, and Telangana are represented by 1 judge each.
0 - The High Courts of Odisha, Himachal Pradesh, Chhattisgarh, Jharkhand, Jammu & Kashmir, Manipur, Meghalaya, Sikkim, Tripura and Uttarakhand have no representation at the Supreme Court.
Which Chief Justice has the best chance of being elevated?
We have classified the chances of elevation to the Supreme Court on the following criteria:
2) Representation of High Courts in the Supreme Court
3) Gender Representation
4) Representation of underprivileged classes in the Supreme Court
The following judges have the highest chances of being elevated, based on the criteria of seniority:
1) Justice Abhay S. Oka is first on the all-India seniority list of Chief Justices. He has served as Chief Justice of Karnataka High Court for more than a year now. He was elevated to the Bombay High Court on August 29, 2003.
Even assuming that the Bombay High Court is already adequately represented (with 4 judges) at the Supreme Court, Justice Oka will still be the seniormost judge from among High Court judges when CJI SA Bobde - who also hails from the Bombay High Court - retires in April 2021.
2) Justice Ajay Mittal is the second seniormost judge and also Chief Justice of the Madhya Pradesh High Court. Justice Mittal was elevated to the Punjab & Haryana High Court on January 9, 2004. Justice Mittal, if elevated to the Supreme Court will have only three years. The Supreme Court already has two judges from the Punjab & Haryana High Court (Justices Hemant Gupta and Surya Kant).
3) and 4) Justice Akil Kureshi and Justice DN Patel were elevated on the same day - March 7, 2004, to the Gujarat High Court. Justice DN Patel is currently the Chief Justice of Delhi High Court, and Justice Akil Kureshi is the Chief Justice of the Tripura High Court.
II. Representation of Parent High Courts in Supreme Court
Based on this criterion, the following Chief Justices have the best shot at being elevated:
1) Justice Ravi Shanker Jha (Chief Justice of the Punjab & Haryana High Court) was elevated as a judge on October 18, 2005.
2) Justice Jitendra Kumar Maheswari (Chief Justice of the Andhra Pradesh High Court) was elevated as a judge on November 25, 2005.
Only one judge currently represents the Madhya Pradesh High Court in the Supreme Court. After the retirement of Justice Arun Mishra in September, the High Court will have no representation at the Apex Court.
3) After former Chief Justice of India Dipak Misra, there has been no judge at the Supreme Court representing the Orissa High Court. Justice Indrajit Mahanty (Chief Justice of the Rajasthan High Court) is the senior-most judge whose Parent High Court is the Orissa High Court. He was elevated on March 31, 2006.
4) Justice Sanjay Karol: After the retirement of Justice Deepak Gupta, there has been no representation in the Supreme Court from Himachal Pradesh. Justice Sanjay Karol was elevated to the Himachal Pradesh High Court on March 8, 2007, and is currently serving as Chief Justice of the Patna High Court.
The High Courts of Chhattisgarh, Jharkhand, Jammu & Kashmir, Manipur, Meghalaya, Sikkim, Tripura and Uttarakhand do not have any judge serving as Chief Justice of other High Courts.
III. Gender Representation
With the impending retirement of Justice Banumathi, the Supreme Court will have just two woman judges (Justices Indu Malhotra and Indira Banerjee).
1) Justice Gita Mittal is the senior-most woman judge in any High Court in India. Justice Mittal was appointed to her Parent High Court of Delhi on July 16, 2004.
Currently, Justice Gita Mittal is the only woman Chief Justice across 25 High Courts in India.
IV. Underprivileged Classes representation in the Supreme Court
Justices S Mani Kumar and L Narayana Swamy are the two Chief Justice amongst 25 High Courts who belong to the Scheduled Caste community.
Justice Mani Kumar was appointed to the Madras High Court on July 31, 2006, and Justice Swamy was appointed to the Karnataka High Court on July 4, 2007.
Justice BR Gavai is the only judge at the Supreme Court who belongs to the Scheduled Caste community.
If Service (Lower Judiciary) experience is a category?
None of the judges in the current list of 25 Chief Justices is from the lower judiciary. They have all been appointed directly from the Bar to the High Court.
In fact, Justice Banumathi is currently the only judge at the Supreme Court who was elevated from Service (lower judiciary).
Currently, out of the 688 High Court Judges, 491 are from the Bar and 198 are from Service. Unless the judges from Service feel that they have a shot at reaching the Highest Court of the land, why would talented people join Judiciary as a career?
Therefore, if experience in Lower Judiciary is added as a category, here are the seniormost judges who may have a shot at the Supreme Court of India. Again, we are not commenting on the merits of the judge.
1) Justice Sabina was elevated to the Punjab & Haryana High Court on March 12, 2008. She is the seniormost High Court judge who has come from service (lower judiciary). She is currently posted as a judge of the Rajasthan High Court.
2) The other two seniormost judges of the High Courts who were appointed from the subordinate judiciary are Justices Sanjaya Kumar Mishra and Chitta Ranjan Dash, both belonging to Orissa High Court. They were elevated on the same day i.e. October 7, 2009.
Here are some puisne judges who may be considered for elevation (purely on the basis of Seniority and Representation)
There have been precedents of puisne judges being elevated to the Supreme Court ahead of Chief Justices. Examples from the recent past include Justice Abdul S Nazeer from the Karnataka High Court and Justice Sanjiv Khanna from the Delhi High Court. Both of these judges had nearly 14 years of High Court experience when they were elevated to the Supreme Court.
Here's a look at which puisne judges of the High Courts may follow suit.
The seniormost judge from Madhya Pradesh High Court is Justice Pankaj Kumar Jaiswal, who is currently posted as the second senior-most judge at the Allahabad High Court. Justice Jaiswal was elevated to the High Court on October 11, 2004.
Justice Kumari Sanju Panda was elevated as judge of the Orissa High Court on March 1, 2007, and is now the second senior-most Judge of the Orissa High Court. Since Orissa does not have any representation in the Supreme Court, she may be considered.
Justice BV Nagarathna was elevated as judge of the Karnataka High Court on February 18, 2008. Of late, there have been a lot of rumours circulating that Justice Nagarathna may be elevated to the Supreme Court. If she is appointed now, Justice Nagarathna shall be the first woman CJI, albeit for a brief period of 8 months.
She is the daughter of former CJI ES Venkataramaiah. If Justice Nagarathna's elevation does go through, it will also be the first father-daughter CJI combination. Justice Nagarathna is also the second seniormost Judge at the Karnataka High Court.
It may be noted that there are other women judges at various High Courts, including Justice Mittal, Justice Panda, Justice Bharati Sapru of the Allahabad High Court (retires on July 28, 2020), Justice Hima Kohli of Delhi High Court and Justice Daya Chaudhary of the Punjab & Haryana High Court, who are senior to Justice Nagarathna.
Apart from these, there is also the possibility of direct elevations from the Bar. Justice Indu Malhotra was the last Supreme Court judge to be appointed via this route.