What does Regional Diversity in Judicial Appointments Mean?
The Supreme Court collegium resolutions almost always take regional diversity into account, though this is only an unwritten rule.
In this series of posts, we are analysing the criterion on the basis of which a recommendation for the appointment of a judge is made. For an overview of the thirteen collegium resolutions on which this is based, and the method used in this series look here. In the previous posts, we examined merit, seniority and integrity as factors.
One may assume that references to ‘diversity’ in judicial appointments mean social, gender or class identity. However, the preeminent diversity concern appears to be regional representation – more specifically, that SC judges are appointed from different State HCs across the country!
Representation of High Courts (HCs) from various States can be measured in two ways: firstly, the parent HC to which a judge is appointed as a HC judge. This is invariably the State where the judge was appointed as a subordinate judge or where the advocate had a significant practice. Secondly, the HC to which a judge is posted when an elevation to the Supreme Court is announced. As puisne judges are invariably transferred as the Chief Justice of High Court other than their parent HC before they’re elevated to the Supreme Court, the transfer HC is unlikely to be where the judge originates from. The collegium considers the judges’ parent HC as the basis for assessing regional representation.
HC representation has been cited as part of the general statement of five collegium resolutions. In two resolutions, the collegium specifically acknowledged that not all HCs were represented at the SC and hence, the reference to this criterion may well be decisive in these situations.
The collegium resolutions also noted the parent HC of 11 specific judges while individually recommending these judges. With four judges, the collegium did this in order to justify appointing more than one judge from the same HC. This was because they were large HCs in terms of sanctioned strength. In one instance, the collegium also noted that the Delhi HC had ‘special importance’ since it was the Court for the national capital, when appointing a third judge from that Court. In most cases (seven times), the parent HC of a judge was cited because it was unrepresented at the SC.
Representation of HCs has often been recognised as an unwritten or informal criteria. These collegium resolutions make it clear that the Court is willing to acknowledge that it is an important consideration. Unlike merit, seniority and integrity the criterion of HC representation has no relationship with the future potential of the appointed judge.