If seats on the Supreme Court are roughly allocated on the basis of some regional formula, then any deviation from the constitutionally designed scheme of representation of the states in Parliament must be supported by clearly defined and publicly disclosed reasons.

COMMENTARY

Regional Representation on the Supreme Court

Abhinav Chandrachud

SC between 1985 and 2010 roughly correspond with the constitutional scheme for power-sharing between states at the centre? A comparison between the share of seats constitutionally allocated to each state in Parliament, and the share of seats historically allocated to each state on the

SC reveals that in some material respects If seats on the Supreme Court In an empirical study that was published the seat sharing arrangements in both in the Economic & Political Weekly (“An institutions differ.

are roughly allocated on the Empirical Study of the Supreme Court’s

basis of some regional formula,

Composition”, 1 January 2011) I had meas-Regional Representation then any deviation from the

ured the composition of the Supreme Court The share of seats that states have been al

constitutionally designed (SC) over a 25-year period between 1985 located on the SC has not remained constant and 2010,1 using data readily available in 1985-2010. For example, Rajasthan’s share

scheme of representation of the from the Court’s own website. The study on the Court went up from one seat to

states in Parliament must be

was criticised,2 perhaps justiﬁably, for three seats during justice K G Balakrishnan’ssupported by clearly deﬁned and

having “modest aims”, although I would term as Chief Justice of India; and similarly,

publicly disclosed reasons. argue that preliminary empirical investi-Orissa’s share increased from one seat to gations of this kind must necessarily be three seats during justice A S Anand’s term. modest, laying a foundation without However, on average, appointments to the building an ediﬁce. This article is an apex court typically appear to have been attempt to incrementally, albeit modestly, made by taking into account amongst othbuild on the study. I examine whether the er factors, a judge’s high court of origin. scheme of seat sharing between states on Some states did better than others on the the Supreme Court corresponds with the Court, and the average representation of constitutionally devised scheme for pow-each state on the SC was mapped out in er-sharing amongst states at the centre. Table 2 (p 14) of the preliminary study, The preliminary study revealed that which table is reproduced as Table 1. some form of regional representation was It will be recalled that there were two and continues to be prevalent on the SC. In factors used in the preliminary study to other words, many states in India have been determine the share of seats belonging to allocated roughly between one and three a state on the SC: (1) the number of fresh seats on the SC but never more. Some appointments made to the SC from the states have had no representation on the high court of that state, and (2) the length Court, while others have done over-

Table 1: Share of Seats on the Supreme Court of India between whelmingly well. The analysis re-July 1985 and May 2010

1985-2010 Pre-2000 Post-2000

vealed that Maharashtra had the

(%) No (%) No (%) No largest average share of seats be-(1) (2) (1) (2) (1) (2)

tween 1985 and 2010. Uttar Pradesh

Jammu and Kashmir 2.6 4 2.9 1 2.2 3

Himachal Pradesh 0.2 1 0 0 0.4 0

came next, followed by Karnataka

Punjab and Haryana 6.2 5 6.6 1 5.7 4

and the states of Tamil Nadu, West

Delhi 6.8 8 5.5 4 8.4 4

Bengal and Andhra Pradesh.

Rajasthan 3.8 6 5.1 2 2.2 4

But how does the share of each

Uttar Pradesh 8.6 10 9.1 6 8 4

state on the SC compare against the

West Bengal 7.6 10 8.4 5 6.6 5

state’s constitutionally allocated Orissa 4.8 5 3.3 2 6.6 3

representative strength in both Bihar 6.4 6 3.6 2 9.7 4

houses of Parliament? The Consti- Assam* 2.6 5 1.4 2 4 3

tution contemplates a scheme for Madhya Pradesh 5.8 8 5.1 4 6.6 4 Gujarat 5.2 8 6.6 4 3.5 4

power-sharing at the centre. The

Maharashtra** 9.4 10 9.1 5 9.7 5

seats allocated to states in both

Andhra Pradesh 7.4 6 9.1 4 5.3 2

houses of Parliament represent a

Karnataka 8.4 8 7.7 4 9.3 4

constitutionally devised formula to

Tamil Nadu 7.6 10 9.9 7 4.8 3

Abhinav Chandrachud (abhinav.chandrachud@ determine a state’s relative strength

Kerala 6.0 8 5.8 4 6.2 4

gmail.com) is with a law ﬁrm in the United

and position at the centre. Does the *Includes Nagaland, Manipur, Tripura, Meghalaya, Mizoram and Arunachal States.

Pradesh. representation of each state on the **Includes Goa.

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may 14, 2011 vol xlvI no 20 13

COMMENTARY

Table 2: Constitutionally Designed Share of Seats Allocated to Each each. Similarly, Maharashtra, number of seats in the Lok Sabha (LS) to

State/Union Territory on the Parliament of India Lok Sabha Rajya Sabha	Both Houses	Uttar Pradesh, West Bengal and
	No	%	No	%	No	%	Tamil Nadu had the highest
	(1)	(2)	(3)	(4)	(5)	(6)	number of fresh appointments
Andhra Pradesh	42	7.73	18	7.35	60	7.61	(10 each) in 1985-2010 made to
AssamBihar	14 40	2.58 7.37	7 16	2.86 6.53	21 56	2.66 7.11	the Court. In 2000-10, on the
Jharkhand	14	2.58	6	2.45	20	2.54	other hand, Bihar joined Maha-
Goa	2	0.37	1	0.41	3	0.38	rashtra with a 9.7% share on
Gujarat	26	4.79	11	4.49	37	4.7	the Court. Karnataka followed
Haryana	10	1.84	5	2.04	15	1.9	closely behind in the last 10
Kerala	20	3.68	9	3.67	29	3.68	years with 9.3% on the Court.
Madhya Pradesh	29	5.34	11	4.49	40	5.08	Similarly, over the last 10 years,
Chhattisgarh	11	2.03	5	2.04	16	2.03	Delhi joined Uttar Pradesh with
Tamil Nadu	39	7.18	18	7.35	57	7.23	over 8% of the seats.
Maharashtra	48	8.84	19	7.76	67	8.5	Interestingly,	the	National
Karnataka	28	5.16	12	4.9	40	5.08	Capital Territory (NCT) of Delhi
OrissaPunjab	21 13	3.87 2.39	10 7	4.08 2.86	31 20	3.93 2.54	has seen better representation
Rajasthan	25	4.6	10	4.08	35	4.44	on the	SC	between 1985 and
Uttar Pradesh	80	14.7	31	12.7	111	14.1	2010 than many states, viz, Jam-
Uttarakhand	5	0.92	3	1.22	8	1.02	mu	and	Kashmir,	Himachal
West Bengal	42	7.73	16	6.53	58	7.36	Pradesh, Punjab and Haryana,
Jammu and Kashmir	6	1.1	4	1.63	10	1.27	Rajasthan, Orissa, Bihar, Assam,4
Nagaland	1	0.18	1	0.41	2	0.25	Madhya Pradesh, Gujarat and
Himachal Pradesh	4	0.74	3	1.22	7	0.89	Kerala.5 In 2000-10, Delhi has
Manipur	2	0.37	1	0.41	3	0.38	also done better on the Court
Tripura	2	0.37	1	0.41	3	0.38	than the states of Uttar Pradesh,
Meghalaya	2	0.37	1	0.41	3	0.38	West Bengal, Andhra Pradesh
SikkimMizoram	1 1	0.18 0.18	1 1	0.41 0.41	2 2	0.25 0.25	and Tamil Nadu.6 Delhi has had
Arunachal Pradesh	2	0.37	1	0.41	3	0.38	on average approximately two
Delhi	7	1.29	3	1.22	10	1.27	seats on the Court consistently
Puducherry	1	0.18	1	0.41	2	0.25	since justice Ahmadi’s term	as
Andaman and Nicobar	1	0.18	-	-	1	0.13	Chief	Justice	of	the	Supreme
Chandigarh	1	0.18	-	-	1	0.13	Court (when two Delhi seats
Dadra and Nagar Haveli	1	0.18	-	-	1	0.13	were added to the Court (justic-
Daman and Diu	1	0.18	-	-	1	0.13	es Kirpal and Wadhwa) at a time
Lakshwadeep	1	0.18	-	-	1	0.13	when Delhi had either one seat

of the term of the judges appointed to the SC from the high court of that state. A judge appointed at age of 62 from Kerala would have a shorter tenure on the SC than a judge appointed at age of 57 from Andhra Pradesh, although both judges may be appointed to the SC on the same day.3 Although both states would have scored one appointment on the SC, the Andhra Pradesh seat would last longer on the Court than the Kerala seat. For this reason, both factors were taken into account by the preliminary study in ascertaining a state’s relative position on the SC.

Historically, Maharashtra had the largest share on the SC with over 9% on the court, then Uttar Pradesh with 8.6%, followed by Karnataka with 8.4%, and the states of Tamil Nadu, West Bengal and Andhra Pradesh with approximately 7%

or none). Justice Ahmadi took over as Chief Justice of India in March 1994, nearly a year after the second transfer of the judges case,7 which secured a greater role for the chief justice in matters of appointment of judges.

Distribution in Parliament

India has 28 states, six union territories, and one NCT. Interestingly, 16 of these states have separate judicial and administrative capitals.8 Each of these states and some territories have been given seats in Parliament. Laws can be enacted by Parliament by a majority vote,9 i e, by a total of 50.1% of the composition of each House.10

Article 81 of the Constitution read with the First Schedule to the Representation of People Act, 1950, allocates a certain

may 14, 2011

each state and to the union territories in India. Column 1 of Table 2 sets out the total seats allocated to each state and union territory, while column 2 measures the percentage of seats available to each state and union territory, on the LS. The table reveals that the most “powerful” states in the LS based on seat sharing are: Uttar Pradesh (14%), Maharashtra (8%), Andhra Pradesh (7%), Bihar (7%), Tamil Nadu (7%), and West Bengal (7%). These six states are the most “powerful” in the Lok Sabha not merely because they have the largest representation in the House from amongst all other states, but also because their membership in the LS collectively adds up to 50% of the composition of the House. Accordingly, these six states are the fewest number of states that can theoretically collectively block or “veto” legislation since they have 50% of the vote in the LS.

Similarly, Article 80 read with Schedule 4 to the Constitution allocates a certain number of seats in the council of states (Rajya Sabha) to each state and to some union territories in India. Column 3 of Table 2 sets out the total seats allocated to each state and union territory in the Rajya Sabha, while column 4 measures the percentage of seats available to each state and union territory. The six “veto” states could collectively block legislation in the LS but have only a 45% vote in the Rajya Sabha, and would need the cooperation of any two of the following states to “veto” legislation in the Rajya Sabha: Gujarat (4%), Madhya Pradesh (4%), Karnataka (4%), Orissa (4%), or Rajasthan (4%), which enjoy the next best representation on the Rajya Sabha.11

When the constitutionally mandated seat sharing arrangement in Parliament is

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vol xlvI no 20

Economic & Political Weekly

COMMENTARY

Table 3: Comparison between the Percentage-wise Allocation of Seats to States on the Supreme Court and in Parliament

Difference (%)

Andhra Pradesh -0.21

Assam -2.09

Bihar -0.70

Jharkhand -2.53

Gujarat 0.50

Punjab and Haryana 1.76

Kerala 2.31

Madhya Pradesh 0.72

Chhattisgarh -2.03

Tamil Nadu 0.36

Maharashtra 0.51

Karnataka 3.32

Orissa 0.86

Rajasthan -0.64

Uttar Pradesh -5.48

Uttarakhand -1.01

West Bengal 0.23

Jammu and Kashmir 1.43

Himachal Pradesh -0.68

Sikkim -0.25

Delhi 5.53

compared with the historically observed seat sharing arrangement in the SC, the results are consistent in some cases, but strikingly inconsistent in others. Table 3 maps the results of this comparison, by subtracting a state’s percentage-wise representation in Parliament from its percentage-wise representation in the SC, i e, in other words, by subtracting column 6 of Table 2 from column 1 of Table 1. Where two or more states have one high court between them, their voting strength in Parliament is aggregated while comparing it against their representation on the Supreme Court.12 A positive ﬁgure indicates that a state has greater representation in the SC in 1985-2010 than it has had in Parliament, while a negative ﬁgure indicates the contrary.

Orissa and Rajasthan. Delhi also had	Nagaland, Meghalaya, Manipur, Tripura,
greater representation in the SC than Pun-	Mizoram, Arunachal Pradesh), have seen
jab and Haryana, Kerala, Jammu and	lower representation on the SC than they
Kashmir and Himachal Pradesh. Taken to	are entitled to in Parliament.
gether, the north-eastern states of Assam,
Nagaland, Manipur, Tripura, Meghalaya,	Why the Difference?
Mizoram and Arunachal Pradesh, each of	If seats on the SC were allocated to judges
which is represented by one high court	based solely on merit, then this compari
at Gauhati, Assam, exercise 5.3% voting	son would have been irrelevant. However,
power in the Rajya Sabha (enough for	if seats on the apex court are roughly
them to collectively be considered a “veto”	allocated on the basis of some regional
state in the Rajya Sabha) – despite this the	formula for power-sharing between states,
Delhi High Court’s representation in the SC	as appears to be the case, then any devia
exceeds the representation of the Gauhati	tion from the constitutionally designed
High Court in the SC. Finally, Delhi has had	scheme of power-sharing between states
as many judges appointed to the SC be	must be supported by clearly deﬁned and
tween 1985 and 2010 as Madhya Pradesh,	publicly disclosed reasons.
Gujarat, Karnataka and Kerala.	Why is it, for example, that Delhi is al-
Further, several states in India have had	located more seats on the SC and has done
greater than a 0.5% difference between	better on average on the Court, than its
their constitutionally allocated share of	constitutionally allocated share of seats in
seats in Parliament and their historically	Parliament? This could perhaps have been
observed share of seats on the Supreme	justiﬁed if the docket or case load borne
Court on this basis: (1) besides Delhi, the	by the Delhi High Court was large in com
states of Gujarat, Punjab and Haryana,	parison to the other states in India, but a
Kerala, Madhya Pradesh, Maharashtra,	snapshot of the Court’s docket reveals that
Karnataka, Orissa, and Jammu and Kashmir	this is not so. Table 4 sets out the total cases,
have seen higher representation on the SC	civil and criminal, instituted before each
than they are entitled to in Parliament;	high court between 1 July 2009 and 30 June
and (2) besides the “newer” states of	2010, and the total cases, civil and criminal,
Jharkhand, Uttarakhand and Chhattisgarh,	pending before each high court as on
the states of Bihar, Rajasthan, Uttar Pradesh,	30 June 2010. The data has been obtained
Himachal Pradesh and Assam (including	and compiled from the four latest issues

Table 4: Cases Instituted and Pending before Each High Court in India

Court	Total Sanctioned Strength of	Cases Pending as on	Cases Instituted between
	Each High Court (as on 31 March 2010)	30 June 2010	1 July 2009 and 30 June 2010
	No	%	No	%	No	%
	(1)	(2)	(3)	(4)	(5)	(6)
Uttar Pradesh	160	17.87	9,69,932	23.18	2,49,894	54.21
Andhra Pradesh	49	5.47	1,94,000	4.63	69,753	15.13
Maharashtra	75	8.37	3,44,477	8.23	1,50,685	32.68
West Bengal	58	6.48	3,29,580	7.87	92,328	20.02
Chhattisgarh	18	2.01	57,165	1.36	19,111	4.14

	Delhi	48	5.36	61,807	1.47	39,433	8.55
The Supreme Court and Parliament	Gujarat	24	2.68	95,350	2.27	73,222	15.88
The comparison reveals that the Delhi	Assam	42	4.69	60,116	1.43	32,634	7.07
NCT has done overwhelmingly better in the	Himachal Pradesh	11	1.22	49,582	1.18	25,002	5.42
SC than it is permitted to do in India’s Par-	Jammu and Kashmir	14	1.56	63,520	1.51	30,411	6.59
liament. It has less than 1.3% voting power	Jharkhand	20	2.23	56,295	1.34	28,650	6.21
in each House of Parliament. However, between 1985 and 2010, Delhi had 6.8% representation in the SC. To put this ﬁgure into	KarnatakaKeralaMadhya Pradesh Tamil Nadu	50 38 43 60	5.58 4.24 4.80 6.70	1,97,701 1,17,282 2,09,383 4,48,178	4.72 2.80 5 10.71	1,68,099 70,038 1,09,184 2,79,897	36.46 15.19 23.68 60.72
perspective, consider that the following	Orissa	22	2.45	2,67,162	6.38	1,00,555	21.81
states in India described above as “veto”	Bihar	43	4.80	1,27,745	3.05	85,801	18.61

states (either in the Rajya Sabha alone or Punjab and Haryana 68 7.59 2,42,829 5.80 1,04,784 22.73

in both Houses) had lesser representation Rajasthan 40 4.46 2,72,936 6.52 96,247 20.87 Sikkim 3 0.33 79 0.001 100 0.021

than Delhi in the SC between 1985 and

Uttarakhand 9 1 18,612 0.44 13,147 2.85

2010: Bihar, Gujarat, Madhya Pradesh,

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may 14, 2011 vol xlvI no 20 15

COMMENTARY

of “Court News” available on the court website.13 The analysis reveals that the Delhi High Court had fewer cases instituted between 1 July 2009 and 30 June 2010 than each of the “veto” states above, and also fewer cases pending as on 30 June 2010 than the “veto” states, although its representation on the SC is stronger than many of the “veto” states.

On the other hand, the Delhi High Court has a sanctioned strength of 48 judges – more judges than the “veto” states of Bihar, Gujarat, Madhya Pradesh, Orissa and Rajasthan. This could potentially explain why Delhi has done better on the SC than these states. However, if the size of a state’s high court forms a criterion in determining the state’s share of seats on the SC, why is it that the following states have fewer seats on the SC than Delhi, although their high court’s size is larger than the Delhi High Court: Punjab and Haryana, and, the states of Uttar Pradesh, West Bengal, Andhra Pradesh and Tamil Nadu (which saw lesser representation on the Supreme Court than Delhi between 2000 and 2010). This methodology also begs the question of whether the size of a state’s high court or of its bar should determine the share of seats allocated to each state on the SC. It also leads one to question why the states of Bihar, Gujarat, Madhya Pradesh, Orissa and Rajasthan do not have a larger sanctioned high court strength than Delhi, given that the total institution and pendency of cases on these courts is higher than it is in Delhi.

This differential may also be sought to be justiﬁed by arguing that the quality of judges, the bar, and litigation generally, is “superior” in the Delhi High Court than it is in the high courts of the “veto” states, although such assertions may be contested by the bar and bench in the “veto” states. However, this assertion begs the question of why judges should not be appointed solely on the basis of “qualitative” criteria.

Representing the States

The SC is not a representative organ of the states, while Parliament is representative. One could argue that the composition of members in Parliament must correspond with the population of each state in order for it to retain its representative character. On this theory, each state ought to be able to exercise voting power in Parliament in proportion to the size of its population relative to the population of the other states. Constitutional courts, on the other hand, are deﬁnitionally counter majoritarian,14 and their composition need not mirror the strength of different states’ populations. It could therefore be argued that the SC need not mirror the constitutionally devised seat sharing formula between states in India’s Parliament. However, there are two reasons why this assertion may be contradicted. First, since the SC’s composition is not determined randomly, and appointments are made according to some regional seat sharing formula, any deviation from the constitutionally devised power-sharing arrangement between states must be capable of being explained. After all, why should the judicial branch of government follow a different power-sharing arrangement between states from the legislative branch of government? Second, an unelected Court’s counter majoritarian character could arguably be softened if its composition matches the composition of a representative organ of the State such as Parliament.

may 14, 2011 vol xlvI no 20 EPW Economic & Political Weekly

COMMENTARY

The fact remains that the seat sharing arrangement observed on the SC between 1985 and 2010 deviates in some respect from the constitutionally designed allocation of seats in Parliament. This deviation must be supported by publicly disclosed (or at least well deﬁned) reasons.

Notes

1 The period between 1950 and 1985 was left out of the study since data for this period were harder to come by.

2 Krishnaswamy and Khosla, “Understanding Our Supreme Court”, Economic & Political Weekly, Vol XLVI, No 5, 29 January 2011.

3 Justices K Ramaswamy (Andhra Pradesh) and Fathima Beevi (Kerala) were both appointed to the Supreme Court on 6 October 1989. However, K Ramaswamy had a longer tenure in ofﬁce.

4 In this paper, references to the high court in the state of Assam include references to the states of Nagaland, Manipur, Mizoram, Meghalaya, Arunachal Pradesh and Tripura.

5 Although eight judges each were appointed between 1985 and 2010 to the Supreme Court from the states of Madhya Pradesh, Gujarat, Kerala, and from the National Capital Territory of Delhi, Delhi is considered as having had greater representation on the Court than these states since its judges have had longer tenures on the Court on average, a factor which is taken into account while assessing a state’s representative strength on the Court.

6

pointed to the Court from the state of Uttar Pradesh, ﬁve judges were appointed to the Court from the state of West Bengal, while Delhi had four judges appointed to the Court. However, Delhi is considered as having had greater representation on the Court than these states since its judges have had longer tenures on the Court on average. See supra note 6.

7 Supreme Court advocates on Record Association vs Union of India, (1993) 4 SCC 441. See further S P Gupta vs Union of India, (1981) Supp SCC 87; In Re: Article 143 of the Constitution of India, AIR 1999 SC 1.

8 Uttarakhand, Rajasthan, Uttar Pradesh, Gujarat, Madhya Pradesh, Chhattisgarh, Orissa, Goa, Kerala,

-

----

Assam, Arunachal Pradesh, Mizoram, Manipur, Meghalaya, Nagaland and Tripura. 9 Article 100(1), Constitution of India.

10 Constitutional amendments, on the other hand, require special majorities. Article 368, Constitution of India.

11 However, if the north-eastern states represented by the high court at Gauhati (Assam, Nagaland, Manipur, Tripura, Meghalaya, Mizoram and Arunachal Pradesh) are taken together as one unit, they collectively exercise 5.3% voting power in the Rajya Sabha.

12 The states of Punjab and Haryana, Maharashtra and Goa, and Assam, Manipur, Tripura, Meghalaya, Mizoram and Arunachal Pradesh, have one court between them each. For this reason, the representation of these states in Parliament is aggregated in each instance while making the comparison with their representation in the Supreme Court of India.

13