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Abstract

This chapter is an empirical analysis of the tenure of Supreme Court judges in India. With the purpose of introducing a more objective layer to the debate on judicial appointments, the authors tabulate the various time elements connected with Supreme Court judges — their tenure in the Supreme Court, their tenure in the High Courts, and the representation of various parent High Courts in the Supreme Court. The authors compare the tenures of judges appointed by the executive and the collegium, and note the representation of parent High Courts in the Supreme Court based on the regularity and duration of representation of judges from such High Courts in the Supreme Court of India. Finding that the analysis of tenures reveals some unquestionable historical disparities, the authors opine that this should just be the beginning of a more sustained inquiry on the institutional the impact of the tenure of judges.

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In recent years, the Supreme Court decision¹ which invalidated the creation of a National Judicial Appointments Commission revived engaged discussions about the manner of appointment of judges to the higher judiciary in India. The most common point of discussion in this area invariably centres on identifying the better process of appointment of judges and the framework of discussion is mostly on choice of appropriate qualitative norms while appointing judges. In the alternative, the discussion is on the different processes of appointment, namely, appointment by the executive and appointment by the collegium. The usual conversations focus primarily on the differences between these two methods of appointment and also on the benefits and shortcomings of each 210 method. However, such debates generally hinge on the subjectivity of value choices and do not lend themselves to a determinative conclusion as to the method that would be more suitable for selection of judges.

This chapter is an effort to introduce quantitative considerations in the debate on judicial appointments. Thus, we focus on an aspect of judicial appointment which can be quantitatively assessed — tenure of judges. We attempt to explore the dynamics of the tenure of Supreme Court judges from different perspectives. First, we examine the tenure of the judges in the Supreme Court of India in terms of length (longest and shortest tenure) and representation of the High Courts in the Supreme Court to see what kind of changes, if any, have taken place since the change of the appointing authority from the executive to the collegium. Additionally, we delve into the representation of the High Courts in the Supreme Court and the time spent by judges from different High Courts in the Supreme Court, irrespective of the collegium or executive appointment process involved.

This chapter will show that the average tenure has drastically reduced under the collegium system of appointment and that the collegium appoints more frequently than the executive did, prior to 1994. As far as representation of the High Courts in the Supreme Court is concerned, a fair presumption would be that the oldest courts in the country would surely have considerable representation in the Supreme Court throughout the years and this notion has been affirmed. Judges from High Courts of Allahabad, Bombay, Calcutta, and Madras had constant uninterrupted representation in the Supreme Court with very few gaps in the timeline — a gap being the period in the Supreme Court where a High Court remained unrepresented. We are not arguing in favour of a rigid equitable region-based representation in the Supreme Court. Our effort is to have a data-based appreciation of how region-based representation has historically manifested itself in terms of tenure.

SOURCE OF DATA

Data for this paper has been sourced mostly from the official website of the Supreme Court of India and the individual websites of different High Courts. The research of George H. Gadbois, Jr has also been of considerable help.²

The latest judge whose tenure has been included in the study is of Justice Pinaki Chandra Ghose, who retired on 27 May 2017. Six judges who assumed responsibilities of the Supreme Court at the time of adoption of the Constitution were the erstwhile judges of the Federal Supreme Court of India. In relation to them, their appointment to the Supreme Court of India has been considered as the beginning of their tenure. Out of the six, only two (J. Sayyid Fazl Ali and J. Harilal Jekisundas Kania) were appointed prior to the independence of the country.

To analyse the tenure of judges in the Supreme Court of India from various perspectives, we have categorised judges into three categories:

1. Judges who could not complete their tenure due to death.

2. Judges who did not complete their tenure due to resignation.

3. Judges who completed their tenure.

The average tenure of a judge in the Supreme Court of India is 2,024 days. That is approximately five-and-a-half years on the Bench. The 13 judges who resigned from office had served an average of 2,341 days before resigning. The 12 judges who died in office had an average tenure of 1,131 days. 211 While it would require another inquiry into the reasons, it needs to be noted that as many as 11 judges appointed by the executive resigned from office, and only two judges appointed by the collegium resigned from their office. We also found that 11 judges appointed by the executive died in office whereas that misfortune befell only one judge appointed by the collegium. Tables 1 and 2 contain lists of judges who resigned from the office and those who died in office respectively. Figure 1 represents the average tenure of Supreme Court judges who completed their tenure, those who died in office, and those who resigned from office.

Table 1. Supreme Court Judges Who Resigned from Office

Sl No.	Name	Date of appointment	Date of resignation
1.	Bijan Kumar Mukherjea	14 October 1948	31 January 1956
2.	B. Jagannadhadas	09 March 1953	26 July 1958
3.	Syed Jaffer Imam	10 January 1955	31 January 1964
4.	J.R. Madholkar	03 October 1960	03 July 1966
5.	K. Subba Rao	31 January 1958	11 April 1967
6.	J.M. Shelat	24 February 1966	30 April 1973
7.	K.S. Hegde	17 July 1967	30 April 1973
8.	A.N. Grover	11 February 1968	31 April 1973
9.	Hans Raj Khanna	22 September 1971	11 March 1977
10.	Baharul Islam	04 December 1980	12 January 1983
11.	R.S. Pathak	20 February 1978	18 June 1989
12.	Dalveer Bhandari	28 October 2005	27 April 2012
13.	Swatanter Kumar	18 December 2009	19 December 2012

Table 2. Supreme Court Judges Who Died in Office

Sl No.	Name	Date of appointment	Date of death
1.	Harilal Jekisundas Kania	20 June 1946	06 November 1951
2.	Ghulam Hasan	08 September 1952	05 November 1954
3.	P. Govinda Menon	01 September 1956	16 October 1957
4.	P. Satyanarayana Raju	20 October 1965	20 April 1966
5.	Subimal Chandra Roy	19 July 1971	12 November 1971
6.	A.K. Mukherjea	14 August 1972	23 October 1973
7.	S.N. Dwivedi	14 August 1972	08 December 1974
8.	S. Murtaza Fazal Ali	02 April 1975	20 August 1985
9.	Sabyasachi Mukherjee	15 March 1983	25 September 1990
10.	R.C. Patnaik	03 December 1991	30-05-1992
11.	Yogeshwar Dayal	22 March 1991	02 August 1994
12.	M. Srinivasan	25 September 1997	25 February 2000

Figure 1. Average Supreme Court Tenure

212 SUPREME COURT TENURE AND PARENT HIGH COURTs

The majority of judges in the Supreme Court of India are appointed from various High Courts. Out of 202 judges we analysed (including the judges who died in office or resigned from office), only four were appointed from the Bar. That amounts to less than 2 per cent of the judges. Thus, we decided to examine whether there is any correlation between the tenure of judges and their parent High Court. The parent High Court of a judge is the High Court where he first became a judge and not the High Court where he was serving at the time of his appointment to the Supreme Court. A judge can be expected to have served in more than one High Court before being appointed to the Supreme Court.

This analysis was tricky as information on the parent High Court of a judge is not always simple to ascertain. In the last 70 years, many High Courts have been dissolved and many High Courts have been created. Thus, we had erstwhile High Courts of Oudh, Nagpur, Patiala and East Sindh States Union, and Mysore, which no longer exist. The geographic regions over which they had jurisdiction were brought under the jurisdiction of another High Court. At the same time, new High Courts have been created for geographic regions which were earlier under the jurisdiction of other High Courts, with the earlier High Courts continuing to exist and exercising jurisdiction over other geographic regions. For example, High Court of Delhi was established in 1966. After independence, the region of Delhi was under the jurisdiction of the erstwhile High Court of Punjab. The High Court of Delhi also exercised jurisdiction over the geographic region of Himachal Pradesh until 1971. With the creation of Himachal Pradesh as a separate state, the said jurisdiction was divested from the High Court of Delhi and the High Court of Himachal Pradesh was created.

Thus, we decided to streamline the analysis of these variations. We decided to not consider the parent state of a judge and instead focused on the parent High Court. A judge of the High Court of Madhya Pradesh in the 1990s could be from the geographic region which today comprises of the state of Chhattisgarh and comes under the jurisdiction of High Court of Chhattisgarh. However, it was not possible to verify such details objectively. Thus, the parent High Court of such a judge has 213 been determined as Madhya Pradesh. On the other hand, there have been judges who served in High Courts which no longer exist. Let us take the example of an individual who was a judge of High Court of Mysore when appointed to the Supreme Court of India. The High Court of Mysore ceased to exist in 1973 and the jurisdiction of that High Court was transferred to the High Court of Karnataka. In such a case, we have considered the parent High Court of the Judge to be the High Court of Karnataka.

For tenure of the judges in the Supreme Court analysed on the basis of which parent High Court they belonged to, we have not considered judges who did not complete their tenure (death/resignation) and judges appointed directly from the Bar. We have also excluded from this analysis Justice Mehr Chand Mahajan, who was a judge of the High Court of Lahore before he was elevated to the Supreme Court of India. The total number of judges analysed in this respect is 173.³ Figure 2 depicts the average tenure of judges in the Supreme Court in the context their parent High Courts. The average tenure of those who are appointed from the Bar is 2,886 days.⁴ It also should be noted that the parent High Court with the shortest average tenure (Himachal Pradesh) has had only one judge. On the other hand, the parent High Court with the second shortest average (Assam) has had six judges. This analysis is important as it shows that there is substantial and consistent disparity in the tenure of judges depending on which High Court they come from.

Figure 2. Average Supreme Court Tenure and Parent High Courts

Note: The average tenure is expressed in days.

Supreme Court Tenure and Appointing Authority

214 The Constitution of India stipulates that judges to the Supreme Court of India will be appointed by the President. The Constitution originally prescribed a mandatory consultation with the Chief Justice of India and allowed consultation with other judges of the Supreme Court and the High Courts. Though the opinion of the Chief Justice carried great weight, it was understood that his opinion is not binding.⁵ Then, by two decisions of the Supreme Court,⁶ the system was reversed. Currently, the final say in the appointment of judges belongs to a collegium of judges comprising the Chief Justice of India and the four most senior judges of the Supreme Court.

Given these rather opposing schemes of appointment in the same country, we wanted to explore if the introduction of the collegium system of appointment has brought about any change in the average tenure of judges. While looking at this aspect, we did not include in our analysis judges who did not complete their tenure due to death or resignation.

We found a difference of 449 days in the average tenure of judges appointed by the collegium and the executive who completed their tenures. Judges appointed by the collegium spent on an average 25 per cent lesser time in the Supreme Court compared to the judges appointed by the executive. Figure 3 shows this comparison between the two means of appointment. This trend of shorter tenures perhaps also explains⁷ how the collegium has appointed 91 judges in 24 years⁸ while the executive appointed 109 judges⁹ in 46 years. Thus, while the ratio of appointment for the executive was 2.36 judges per year, it has been 3.79 judges per year for the collegium.

Figure 3. Average Supreme Court Tenure and Appointing Authority

This difference is more starkly visible when we compare the average tenure of judges from different parent High Courts appointed by the executive and the collegium.¹⁰ Of the 16 parent High Courts from which judges have been appointed both by the executive and the collegium, there has been a reduction in the average tenure of judges from 13 parent High Courts. Figure 4 illustrates this reduction. The highest reduction in the average tenure has occurred in relation to judges from the 215 parent High Courts of Madhya Pradesh, Gujarat, Bombay, Andhra Pradesh, and Calcutta. Although the reduction in case of the High Court of Orissa is 34 per cent, the sample includes only one judge appointed by the executive. The difference in relation to High Court of Delhi is merely days and it also includes only one judge appointed by the executive. On the other hand, in relation to the parent High Courts of Assam, Madras, and Kerala, the average tenure of judges appointed under the collegium is higher than that of the judges appointed under the executive.¹¹ Figure 5 shows the increase in tenure.

Figure 4. Average Supreme Court Tenure: Percentage of Reduction

Note: Orissa and New Delhi have not been included in this figure as only one judge was appointed by the executive from each of these High Courts.

Figure 5. Average Supreme Court Tenure: Percentage of Increase

216 Longest and Shortest Supreme Court Tenures

Of the 20 judges who have served the longest completed tenures in the Supreme Court of India,¹² 17 were appointed by the executive and three were appointed by the collegium. Of the 20 judges who have served the shortest completed tenures in the Supreme Court, 10 were appointed by the executive and 10 by the collegium. Tables 3 and 4 provide lists of judges with the longest and shortest completed tenures, respectively.

Table 3. Longest Completed Tenures in Supreme Court

Sl No.	Name of the judge	Supreme Court tenure in days
1.	P.N. Bhagwati	4,904
2.	Y.V. Chandrachud	4,700
3.	M. Hidayatullah	4,398
4.	J.C. Shah	4,119
5.	E.S. Venkataramiah	3,937
6.	A.P. Sen	3,717
7.	A.S. Anand	3,636
8.	K.G. Balakrishnan	3,624
9.	S.P. Bharucha	3,596
10.	Sudhi Ranjan Das	3,540
11.	K.N. Wanchoo	3,484
12.	A.K. Sarkar	3,404
13.	S.M. Sikri	3,369
14.	O. Chinnappa Reddy	3,356
15.	Bhuvneshwar Prasad Sinha	3,346
16.	P.B. Gajendragadkar	3,344
17.	M.M. Punchhi	3,290
18.	B.N. Agrawal	3,283
19.	S.H. Kapadia	3,207
20.	Ranganath Misra	3,176

Table 4. Shortest Completed Tenures in Supreme Court

Sl No.	Name of the judge	Supreme Court tenure in days
1.	K.N. Saikia	806
2.	N. Chandrasekhara Aiyar	854
3.	M. Fathima Beevi	936
4.	A. Alagiriswami	1,094
5.	P.K. Balasubramanyan	1,096
6.	K.S. Paripoornan	1,096
7.	N. Venkatachala	1,096
8.	N.D. Ojha	1,096
9.	Jaswant Singh	1,097
10.	V. Khalid	1,100
11.	Vikramajit Sen	1,101
12.	B.L. Hansaria	1,107
13.	Chockalingam Nagappan	1,110
14.	D.P. Madon	1,118
15.	D.P. Wadhwa	1,140
16.	D.G. Palekar	1,142
17.	Ranjana Prakash Desai	1,142
18.	A.K. Ganguly	1,143
19.	M.Y. Eqbal	1,145
20.	Faizan Uddin	1,148

HIGH COURT TENURE OF SUPREME COURT JUDGES

As we have indicated earlier, the overwhelming majority of judges in the Supreme Court are appointed from amongst serving judges in the High Courts. Thus, we decided that it would be instructive to analyse the High Court tenure of judges who were appointed as judges of the Supreme Court.

217 Gathering data on this aspect was challenging. The Supreme Court website does not have uniform data on the High Court tenure of judges. In the end, we could not ascertain the exact dates of appointment of six judges to the High Court.¹³ In relation to five other judges,¹⁴ we found that there was a gap in their tenure as a High Court judge and their appointment as a Supreme Court judge, that is, they were no longer a judge in any High Court at the time of their appointment to the Supreme Court. Thus, we excluded these judges from our analysis as well as the judges who were appointed from the Bar. That left us with 187 judges.

While trying to ascertain the exact tenure of judges in High Courts, we found that there are three kinds of data available in relation to their date of appointment in the High Court:

1. Date of appointment as an additional judge.

2. Date of appointment as a permanent judge.

3. Date of appointment without any reference.

Wherever both the dates of appointment — as additional and permanent judge — were available, we considered the date of appointment as an additional judge as the beginning of the tenure. For the other judges, we had to settle for what data was available. For 34 judges, data was available only in relation to their date of appointment as a permanent judge. For 42 judges, there was no clarity whether the date of appointment referred to their appointment an additional judge or as a permanent judge.

We found that judges, on an average, spent 4,770 days in the High Courts before being appointed as a Supreme Court judge. Figure 6 depicts the average tenure of judges from different parent High Courts before they were appointed to the Supreme Court.

Figure 6. Average High Court Tenure of Supreme Court Judges: Parent High Court

218 Appointing Authority and High Court Tenure

Depending on the appointing authority is the collegium or was the executive, there is a clear difference in the amount of time a judge spent in the High Court before being appointed as a judge of the Supreme Court. Figure 7 illustrates this difference. The time a Supreme Court appointee spends as a High Court judge has increased by more than 14 per cent under the collegium system as compared to the time when the executive appointed judges.

Figure 7. Average High Court Tenure of Supreme Court Judges: Appointing Authority

This shift is even more evident when we compare the average High Court tenure in terms of parent High Courts. Of the 16 parent High Courts from which Supreme Court judges have been appointed by both the collegium and the executive,¹⁵ the average time spent as a High Court judge increased in relation to 13 High Courts. Figure 8 depicts this increase of time. The difference is the starkest in the High Courts of Assam, Orissa, Punjab and Haryana, Rajasthan, and Gujarat. Figure 9 shows the states in which the time decreased.

Figure 8. Average High Court Tenure of Supreme Court Judges: Percentage of Increase

Figure 9. Average High Court Tenure of Supreme Court Judges: Percentage of Reduction

219 Longest and Shortest High Court Tenures

Tables 5 and 6 list the names of 20 judges with the longest and shortest tenures, respectively, as High Court judges, before being appointed to the Supreme Court. Of the 20 judges with the longest tenure at the High Courts, 12 were appointed by the executive and eight by the collegium. Of the 20 judges with the shortest tenure as a High Court judge, not even one was appointed by the collegium.

Table 5. Longest High Court Tenures of Supreme Court Judges

Sl No.	Name of the judge	Number of days as a High Court judge
1.	N.P. Singh	7,004
2.	A.K. Mathur	6,904
3.	S.P. Kurdukar	6,548
4.	M.H. Kania	6,387
5.	P. Jaganmohan Reddy	6,374
6.	G.S. Singhvi	6,324
7.	Aftab Alam	6,317
8.	G.L. Oza	6,301
9.	V. Ramaswami¹⁶	6,274
10.	Yogeshwar Dayal	6,231
11.	Vishishtha Bhargava	6,216
12.	S. Murtaza Fazal Ali	6,202
13.	K. Jagannatha Shetty	6,154
14.	S.J. Mukhopadhaya	6,153
15.	J.M. Panchal	6,138
16.	Sujata V. Manohar	6,133
17.	N.L. Untwalia	6,118
18.	J.S. Verma	6,108
19.	M.Y. Eqbal	6,073
20.	P.B. Sawant	6,035

220 Table 6. Shortest High Court Tenures of Supreme Court Judges

Sl No.	Name of the judge	Number of days as a High Court judge
1.	T.L. Venkatarama Aiyyar	912
2.	B. Jagannadhadas	1,687
3.	A. Alagiriswami	2,259
4.	R.S. Sarkaria	2,288
5.	P.K. Goswami	2,313
6.	K. Ramaswamy	2,564
7.	Sudhi Ranjan Das	2,607
8.	J.L. Kapur	2,779
9.	A. Varadarajan	2,855
10.	Natwarlal Harilal Bhagwati	2,934
11.	A.K. Sarkar	2,960
12.	Jaswant Singh	2,973
13.	M. Hameedullah Beg	3,104
14.	E.S. Venkataramiah	3,178
15.	M. Patanjali Sastri	3,188
16.	P. Govinda Menon	3,323
17.	J.M. Shelat	3,336
18.	Kuttyil Kurien Mathew	3,408
19.	Hans Raj Khanna	3,425
20.	B.C. Ray	3,428

REPRESENTATION OF THE VARIOUS PARENT HIGH COURTS IN THE SUPREME COURT

In order to get a better idea of the representation of the High Courts in the Supreme Court of India, we mapped the Supreme Court judges based on their parent High Court. ‘Influence’ would be a strong word but we wanted to see how often a High Court has been represented in the Supreme Court and for how long. During the analysis, we also considered the continuous uninterrupted period of representation of a particular High Court in the Supreme Court, which means the consecutive number of days for which at least one judge of a particular parent High Court was present in the Supreme Court. The uninterrupted period would extend beyond the tenure of just one judge if another judge from the same High Court is appointed to the Supreme Court before the earlier judge completes his or her tenure, thus providing an overlap and extension of the period of representation of that High Court in the Supreme Court. For this analysis, we have considered the tenures of the last judge from a parent High Court to have retired before 1 June 2017.¹⁷

Our initial assumptions were correct in that the older High Courts of Judicature, which predated the Constitution, had better representation in the Supreme Court. One startling observation was the track record of the High Court of Delhi. It was not represented in the Supreme Court until 1987, which is 21 years after its creation. However, since 1987, it has been continuously represented. Among the older High Courts, Calcutta had a near perfect run but for the seven-day period in December 1998 where nobody represented the High Court of Calcutta. Except those seven days, there has always been a judge from the High Court of Calcutta in the Supreme Court. The High Court of Madras had several short gaps, because of which its longest uninterrupted period was not as impressive as those of its ilk, the High Courts of Calcutta, Allahabad, and Bombay.

Another way to look at the data would be to see for how long the High Courts have been unrepresented. The general discussion in terms of parent High Courts and the Supreme Court tends to centre on the number of judges who have been appointed to the Supreme Court from such parent High Courts. However, we feel that a better indicator 221 is the amount of time such judges have spent in the Supreme Court. Figure 10 shows that certain High Courts have had constant representation in the Supreme Court.

Figure 10. Continuous Uninterrupted Period of Representation of Parent High Courts (in Years)

Figure 11. Period of Non-representation of Parent High Courts in Supreme Court (in Days)

Figure 11 shows the period of non-representation as a percentage of the existence of the High Court. This analysis focuses on the length of time served by the judges in the Supreme Court. For this analysis, the starting point is the date of creation of the High Court. For the High Courts created before the Constitution came into force, the period is calculated from the start of the tenure of the first 222 judge appointed to the Supreme Court of India or the Federal Supreme Court as the case maybe. For example, the start of the period of existence of the High Court of Delhi has been taken as 31 October 1966 as it was created on that day. Whereas, the start date for calculation of the period of existence of the High Court of Calcutta is taken as 14 October 1948 since that is the date of the beginning of the tenure of Justice B.K. Mukherjea, who was appointed to the Federal Supreme Court from the High Court of Calcutta. We must clarify that there also exist High Courts which have never been represented in the Supreme Court of India — High Courts of Chhattisgarh, Jharkhand, Manipur, Meghalaya, Sikkim, Tripura, and Uttarakhand. As is evident, they are comparatively new High Courts.

Figure 12. Percentage of Non-representation of Parent High Courts in Supreme Court

In Figure 12, the High Court data has been arranged in the decreasing order of days of non-representation of a High Court in the Supreme Court. Also, only those High Courts that have had contributed at least one judge to the Supreme Court of India have been considered. As can be clearly seen, the four oldest High Courts have had the least number of days when a judge representing it was not present in the Supreme Court.

To simplify, the High Court of Rajasthan has been unrepresented in the Supreme Court for a little over 62 per cent of the time since the existence of the High Court of Rajasthan. Meanwhile, as was expressed before, the High Court of Calcutta has been unrepresented for 0.03 per cent of the time. Figure 12 also shows that although Delhi had a long uninterrupted period, it still has a high percentage of non-representation, since a judge from the High Court of Delhi was not appointed for almost 21 years after its creation in 1966. Hence, the non-representation of High Court of Delhi comes to 42 per cent.

CONCLUSION

The issue of judicial tenure has significant implications for judges at an individual level and for the judiciary at an institutional level. The expected tenure of a candidate is known clearly when being considered for appointment. Thus, when data 223 reveals consistent trends in this respect, it is difficult to presume that the trends are merely accidental. Analysing the patterns of how tenures of judges are being structured can be an inquiry in itself. As is evident from the findings of this study, such an inquiry can reveal disparities which are consistent and may be prone to being labelled as systematic. When there are substantial differences in how often and for how long judges are appointed in the Supreme Court from different jurisdictions (See Figures 10, 11, and 12), it raises questions on the representative character of the Supreme Court in terms of the diversity of thought or perspectives accommodated in the institutional framework. This study proves without a doubt that the Supreme Court has not had a tradition of equitable distribution in tenure of judges when it comes to regional representation. There is also the need to examine the issue of tenure from other perspectives, such as social background of the judges, legal background of the judges,¹⁸ and so on. While a rigid rule of representative distribution might not be the ideal, unidimensionality of patterns, as can be seen in this chapter, is not encouraging for a country as diverse as India. The overwhelming dominance of certain states in terms of representation in the Supreme Court and the negligible presence of others is likely to have created an imbalanced networks of influences, which must be examined further.

Once it is clear that the tenure of judges is a product of deliberate decision-making, it is also imperative to consider the impact of such decision-making (in relation to tenure) on the judicial process and the justice delivery mechanism.

While the finding from the analysis of tenures of judges of the Supreme Court itself reveals some unquestionable historical disparities, we believe that this exploration should just be the beginning of a more sustained inquiry. The way tenure of judges is structured in reality is likely to have ramifications at various levels. For example, some questions immediately trigger curiosity. Does the length of tenure have any effect on the disposal rate achieved by judges? Does the disposal rate of judges improve with more time in the office? Is the per day disposal rate of judges affected by the length of time they have spent in the office? Does length of tenure have any effect on judicial behaviour? For example, is there any marked similarity in the judicial behaviour of judges who have had longer or shorter tenures? Is there a connection between the tenure of judges and the kind of matters they are assigned to adjudicate? How often are judges with shorter tenures involved in the Constitution Benches? Do judges with shorter tenures have anything in common in their profiles? Do judges with longer tenures share some common attributes? Does the uninterrupted presence of judges in the Supreme Court from the parent High Court of a state have any implications on the behaviour of litigants originating from such states? Have litigants (state and non-state) from such states approached the Supreme Court more frequently during such uninterrupted presence? Do judges appointed from the Bar in the High Courts have a better probability of reaching the Supreme Court and staying there for longer in comparison to the High Court judges who are appointed from the subordinate judiciary?

The tenure of a judge can have direct effect on the capacity of the judge to influence constitutional policy and judicial legacies. Judges with shorter tenures would obviously stand at a natural disadvantage in comparison to judges with longer tenures. At an institutional level, the manner in which the tenure of judges is structured is reflective of the choices concerning the stability and continuity of judiciary as an institution, since systematic shorter tenures mean more frequent change of personnel.

All the above cited issues have substantial impact on the way the justice delivery mechanism in the highest court of the land is structured and the way 224 it functions. We believe that without a strong quantitative base, most discussions on qualitative aspects of judicial reforms are bound to end up in an endless cycle of subjective value assertions. It is hoped that the findings in this chapter will provide a layer of nuance in that endeavour. For example, one can consider all the judges with a tenure less than the average tenure, and examine if there is anything in common amongst such judges. One can also scrutinise litigant behaviour originating from states such as Uttar Pradesh, West Bengal, Maharashtra, and Tamil Nadu and contrast the same with Rajasthan, Assam, and Odisha, and examine if the tenure pattern of judges from such states has had any impact on the litigant behaviour of petitioners and advocates from such states. One can also examine the output of judges with shorter and longer tenures to assess if there are any differences and consider the requirement of having the most efficient structuring of tenure. We should also explore the possibility of structuring the tenure of judges in a manner that facilitates the most efficient management of judicial output.

Notes

* The authors would like to acknowledge the contributions of Shwetav Singh, 2nd-year student, National Law University Odisha, and Bismay Mishra (manager, Gilead Sciences Inc.) in data collection and data analysis.

1. Supreme Court Advocates-on-Record-Assn. v. Union of India, (2016) 5 SCC 1.

2. George H. Gadbois, Jr. 2011. Judges of the Supreme Court of India (1950-1989). New Delhi: Oxford University Press.

3. Justice S.C. Roy was appointed from the Bar and died in office. So he is included in two lists.

4. This is from a sample size of three judges. Justice Subimal Chandra Roy, who died in office, had a very short tenure of 116 days.

5. S.P. Gupta v. Union of India, 1981 Supp SCC 87.

6. Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case) and Special Reference No. 1 of 1998, re, (1998) 7 SCC 739.

7. However, it should also be taken into account that the sanctioned strength of judges in the Supreme Court in the initial years was much lower than what it was when the collegium system was introduced.

8. The first appointments under the collegium system were the judges appointed in December 1993 after the Second Judges case, which was decided in October 1993. The last executive appointment prior to December 1993 was in July 1992. This noticeable gap overlapped with the hearings in the cases.

9. Here, we have excluded two judges who were appointed prior to independence.

10. We have not considered three judges appointed from the Bar. We have excluded Justice Lokeshwar Singh Panta, who was appointed by the collegium. His parent High Court was the High Court of Himachal Pradesh. No judge from High Court of Himachal Pradesh was appointed by the executive. We have also excluded Justice Mahajan, whose parent High Court was the High Court of Lahore.

11. The number of judges appointed from the High Court of Assam (Guwahati), Madras, and Kerala by the executive are 2, 11, and 7 respectively. The number of judges appointed from the High Court of Assam (Guwahati), Madras, and Kerala by the collegium are four, six, and six respectively.

12. It is interesting to note if this were a list of the longest tenures in the Supreme Court, completed or not, Justice R.S. Pathak (4,136 days), Justice K. Subba Rao (3,357), and Justice Sayed Jaffer Imam (3,308 days) would comfortably make the cut.

13. Justices Ghulam Hasan, Harilal Jekisundas Kania, N. Chandrasekhara Aiyar, Sir Sayyid Fazl Ali, S.S.M. Quadri, and Syed Jaffer Imam.

14. Justices Baharul Islam, Mehr Chand Mahajan, N. Rajagopala Ayyangar, V.R. Krishna Iyer, and Fathima Beevi.

15. We have excluded Justice Lokeshwar Singh Panta, who was appointed by the collegium, from this calculation. His parent High Court was the High Court of Himachal Pradesh. No judge from High Court of Himachal Pradesh was appointed by the executive.

16. There were two judges by the name of Justice V. Ramaswami in the Supreme Court. Here, we refer to the first one, who served between 1965 and 1969.

17. The last judge taken for consideration is Justice Pinaki Chandra Ghose, who retired on 27 May 2017.

18. Legal background would mean the presence of family members who have excelled in the legal profession, whether as lawyers or judges.