Experts and activists lament the dominance of the Brahmin community among judges in the Supreme Court and high courts. The counter is that it is a reflection of the composition of the Bar, but is there a way out of this conundrum?
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IN a recent letter to the Union law minister, senior advocate and member of the Karnataka State Bar Council, S. Basavaraj, sought to highlight the caste and religious inequality among judges serving in the Supreme Court and the Karnataka High Court.
The November 10 letter points out that while 'merit' remains a primary criterion for the appointment of judges, caste and religion are significant considerations.
Basavaraj requests the collegiums of the Supreme Court and high courts to practise diversity by giving representation to all castes and religions.
Judges of the Supreme Court and high courts are appointed under Articles 124 (establishment and constitution of Supreme Court) and 217 (appointment and conditions of the office of the judge of a high court) of the Constitution respectively, providing for a "consultative process" between the executive and the judiciary.
Although the two Articles of the Constitution do not provide for reservation to any caste or class of persons, ensuring regional, religious and gender diversity of the judiciary has been on the agenda of the collegiums for long.
Speaking on the importance of inclusivity and representation, former Chief Justice of India (CJI) N.V. Ramana had said in an event in April last year that "The social and geographical diversities must find their reflection at all levels of the judiciary. With the widest possible representation, people get to feel it is their own judiciary.
"Diversity in the Bench promotes diversity of opinion. Diversity enhances efficiency. People from different backgrounds enrich the Bench with their diverse experiences," he had added.
“Basavaraj's letter points out that while 'merit' remains a primary criterion for the appointment of judges, caste and religion are significant considerations.
In August this year, the current CJI Dr D.Y. Chandrachud stated that the collegium aims to "reflect the diversity of India" and that the Supreme Court is "people-centric".
"People will start trusting the judiciary only when they see a reflection of themselves in the people who dispense justice," the CJI added.
In a recent Hindustan Times Leadership Summit, the CJI stressed on the "need to redefine 'merit' in an inclusive sense" to provide opportunities for marginalised communities.
As a recent example, on November 6, in recommending new judges to the Supreme Court, the collegium noted the need to ensure diversity and inclusion in the Supreme Court by representation of high courts that are not adequately represented.
A five-judge collegium comprising the CJI and Justices Sanjay Kishan Kaul, Sanjiv Khanna, B.R. Gavai and Surya Kant also highlighted the importance of gender diversity, representation of minorities, and appointing persons from marginalised and backward segments of society.
Of the three judges recommended for elevation— all male— one belongs to a minority community.
While putting forth its recommendation, the collegium made specific reference to the representation of high courts, as is standard practice.
For instance, while recommending Justice Sandeep Mehta, the collegium resolution noted, "The Rajasthan High Court, which is his parent high court, is a large high court which does not have representation on the Bench of the Supreme Court."
In response to a set of questions by members of Parliament, former Union law minister Kiren Rijiju had assured that the "government is committed to social diversity in the appointment of judges in the higher judiciary."
Rijiju had stressed that the chief justices of high courts give "due consideration" to candidates from Scheduled Caste (SC), Schedule Tribe (ST), Other Backward Class (OBC) and religious minority communities and women "to ensure social diversity in appointment of judges in high courts."
Originally, the collegium used to focus on regional diversity, which looked at the region from which a judge came. However, recently, the Supreme Court collegium has given considerable importance to the parent high court, i.e., the high court at which a judge who is being considered for elevation was first appointed.
“"People will start trusting the judiciary only when they see a reflection of themselves in the people who dispense justice," CJI Dr D.Y. Chandrachud stated.
Such representation of high courts is not mandated by the Constitution, and is dubbed as an 'unwritten criteria'.
The collegium has recommended names for elevation by ensuring regional, state-wise and high court-wise diversity, and terming it as the "true essence of the Supreme Court".
For instance, the rationale for the elevation of Justice Ujjal Bhuyan and S.V. Bhatti to the Supreme Court included ensuring representation to their parent high courts of Gauhati and Andhra Pradesh.
The problem with focussing on representation from parent high courts instead of more straightforward regional representation is that it is not a given that a judge in a particular high court will belong to that region itself.
For example, a person from Rajasthan could be a judge in the Gauhati High Court. His elevation to the Supreme Court would not ensure representation from Assam even though it would ensure representation of the Gauhati High Court.
Indeed, it is not difficult to imagine a situation in which all the high courts are represented but many regions are left out. If the collegium so desires, it could even make sure that only Hindi-speaking judges from all the high courts of the land are elevated to the Supreme Court.
While that would satisfy the parent high court criteria, that surely would not be representative of the regional diversity of India.
Moreover, are the frequent insinuations that the collegium's transfer is "punitive" indicative that the high court diversity criteria is a porous concept?
The overall diversity in the judiciary along the verticals of caste, religion and gender also leaves much to be desired.
On March 17, the Union government informed the Parliament that since 2018, a total of 569 judges have been appointed to the high courts. Of the 569 judges, 17 belong to SC, nine to ST, 64 to OBC and 15 belong to minority communities.
In July this year, during the monsoon session of the Parliament, the Union law minister Arjun Meghwal responded to a question on the percentage of high court judges that belong to dominant castes.
Meghwal said that from 2018 to July this year, 458 (or 75 percent) of the 604 judges appointed to high courts in India belonged to the 'general' or dominant caste category. Only around 20 percent of the Indian population belongs to the general or dominant caste category.
Of India's population, SC and ST communities constitute 16.6 and 8.6 percent respectively under the unofficial Socio-Economic and Caste Census (SECC), 2011.
The number of judges belonging to religious minorities was disclosed to be 34, which is 5.6 percent of the total judges in high courts. According to SECC 2011, minority communities are around 19 percent of India's population.
From the present list of 34 sitting judges in the Supreme Court, three judges come from religious minorities (one each Muslim, Christian and Parsi) and two are Dalits.
“In his letter, Basavaraj states, "Despite having a sizable share of nearly 15 percent of the population of India, Muslim representation in the judiciary is alarmingly low."
In his letter, Basavaraj states, "Despite having a sizable share of nearly 15 percent of the population of India, Muslim representation in the judiciary is alarmingly low."
In his letter, he also states that of the 34 judges in the Supreme Court, 14 are Brahmins. He also points out that of the 51 judges in the Karnataka High Court, 17 are Brahmins.
Offering a lesson in history, the letter seeks to remind that the first Dalit judge was appointed to the Supreme Court as late as in 1980 and the second only in 1989. The tribal community had no representation in the Supreme Court until 2002, the letter adds.
The Bihar Caste Survey, released by the state government in October this year, revealed that only 15.5 percent of the population in the state belonged to the general category. Whereas, more than 63 percent belonged to OBCs and extremely backward classes.
The recently published book Court on Trial: A data-driven account of the Supreme Court of India provides insights into the processes of the Supreme Court as well as the representation of judges in the court before and after the collegium system.
The book explains that "very little caste diversity" was seen under both the former executive-led system and the present collegium system. It states that from 1973 to 1993, only three judges belonging to the SC and ST communities were appointed by the executive-led system and one judge by the collegium from 1993 to 2018. Thereafter, the collegium appointed two members of the SC community in 2019 and 2021.
On the collegium's appointment of female judges, the book points out that of the total 266 judges in the Supreme Court till 2018, only 11 (or 4 percent) have been women.
“Senior advocate Indira Jaising told The Leaflet, "Ultimately, the motive is to ensure people identify with judges as 'one of our own' and feel more comfortable with sharing their problems with."
Describing the Indian judiciary as a "man's world", an article published in June this year reported that of the 788 judges in all high courts, only 107 (or 13 percent) are women.
Of the 34 judges presently constituting the Supreme Court, only three (or 9 percent) are women. The Supreme Court collegium has no female representation.
Given that women constitute 48.4 percent of the population of the country, their underrepresentation in the higher judiciary is almost scandalous.
On the representation of women in the Supreme Court, the CJI had stated in an event at the Hindustan Leadership Summit that the "available pool of talent, broadly, is the high court judges".
Anjana Prakash, a senior advocate at the Supreme Court, and a former judge of the Patna High Court told The Leaflet, "Merit is a criterion required only for the marginalised and women. The playing ground in our profession is not level, in fact very unequal to say the least."
"As I look at it, privilege is a very complex equation. Unless we stop seeing persons in coveted positions in terms of gender, caste, etc., things won't change."
On the argument of lack of merit among the women candidates and those who belong to the marginalised communities, Prakash shared, "I don't believe there is not enough merit in the diverse groups. The problem lies in the selection process which marginalises merit amongst the diverse groups."
According to Prakash, the term 'merit' has several connotations and it is often employed as an "excuse" to not choose the right person.
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Stressing on the vital role that the selection team plays in appointing judges, Prakash opined, "It is the selection team which must realise the importance of harmonising merit with diversity for the good of the end users of the justice delivery system instead of holding on to their own prejudices.
“In his letter, Basavaraj writes that of the 34 judges in the Supreme Court, 14 are Brahmins.
"I find it unacceptable that it is difficult to choose an honest person with a sense of justice, which is the true merit, amongst the diverse groups."
On her own elevation to the Patna High Court, Prakash shared, "I should have been elevated to the Bench much before I did if the team was looking for merit alone. And I am not alone. There are so many like me whose elevation either did not come or was delayed."
In its report in 2004, the National Commission for Scheduled Castes suggested making an amendment to the Constitution to make provisions for members of the SC and ST communities.
Parliamentary standing committees made similar recommendations in 2001 and 2005 on reservations in the judiciary.
In a statement published by the Press Information Bureau (PIB) in March this year, the ministry of law and justice had stated, "The onus to provide social diversity and representation to all sections of the society including SC, ST, and OBC communities, and women and minorities, primarily falls on the judiciary.
"Government cannot appoint any person as a high court judge who is not recommended by the high court collegium or the Supreme Court Collegium," the statement had added.
However, Basavaraj claims in his letter that although cleared by the high court and Supreme Court collegium, the file of a judge with an excellent background who happens to be from the Muslim community was withheld for almost two years only to be cleared after his juniors had been appointed, thus skewing the seniority scheme against him.
In addition, Basavaraj asserts, "The latest recommendation of a Muslim candidate has been deliberately withheld while his juniors in the Bar have been appointed many months ago."
In August this year, the Parliamentary Panel on Personnel, Public Grievances and Law and Justice, headed by Bharatiya Janata Party's member of Parliament Sushil Modi, submitted a report on judicial processes and reforms.
Instead of making amendments to the Constitution or instituting reservations in the judiciary, the panel called for the Supreme Court and the high court collegiums to recommend an adequate number of women and candidates from marginalised communities.
“An article published in June this year reported that of the 788 judges in all high courts, only 107 (or 13 percent) are women.
At an event in March this year, the CJI had stated that in terms of diversity and inclusion, the seeds of the judiciary "reflect the state of the profession two decades ago".
He had emphasised the need for the inflow of marginalised groups at the lowest levels by creating a framework for a diverse profession, including a focus on women's education.
The Leaflet spoke with Pratik Bombarde, a Supreme Court lawyer and minority rights advocate about the CJI's statement that the current composition of the judiciary represents the state of the Bar from the "beginning of the millennium" and composition of the "talent pool".
Bombarde points out that 80 percent of the population is underrepresented in the high courts and the Supreme Court. In such a skewed situation, the CJI's justification does not hold much water.
The number of judges in the high courts and the Supreme Court is only a minute fraction of the total number of judges and advocates in India, and among the large ocean of potential candidates, one assumes that the collegium should be able to pick up the necessary number to improve the representational profile of Indian judiciary.
If only 13 percent of high court judges are women, for example, that does not mean that 13 percent of Supreme Court judges have to be women. Out of the 13 percent of high court judges, 50 percent of Supreme Court judges can easily be chosen.The same holds true for other marginalised communities as well.
It is not a necessity but a decision to make the composition of current Supreme Court judges reflect the state of the Bar from 20 years ago.
According to Bombarde, there is a sufficient system in place to locate meritorious candidates from marginalised communities but that system is not being used properly. Hence the need for reservations.
Also read: A top-notch primer on reservations in India
As per Bombarde, the Supreme Court collegium has relaxed appointment norms in the past to accommodate certain candidates. "Why cannot the collegium relax its norms for appointing judges from SC, ST and OBC communities after identifying them?
"The Centre for Research and Planning can be mandated to constitute committees in every state to identify individuals from Bar and Bench belonging to marginalised communities for higher judiciary," he added.
“Emphasising the need for reservation in the judiciary, Bombarde said, "Reservation is representation".
Emphasising the need for reservation in the judiciary, Bombarde said, "Reservation is representation". Such representation, Bombarde opines, is especially important since the Supreme Court frequently adjudicates on matters relating to marginalised groups.
An article published previously by The Leaflet points out a report by the American Bar Association's Center for Human Rights, published in October 2021, revealing the "persistence of implicit biases of upper-caste judges toward their colleagues from the Dalit community".
In his letter to the Union law minister, Basavaraj stresses the importance of diversity in the judiciary to highlight the "pluralistic nature of Indian society".
Basavaraj opines, "Representation from different castes and religions helps in ensuring a broader perspective in the interpretation and application of laws.
"A diverse judiciary can contribute to a more inclusive and equitable justice delivery system. Judges from various backgrounds may bring unique insights that enhance the understanding of different social and cultural issues."
“Basavaraj implored the ministry to ensure discrimination is avoided in the appointment process and to reflect the ideals of equality, justice and secularism as guaranteed in the Constitution.
Basavaraj implored the ministry to ensure discrimination is avoided in the appointment process and to reflect the ideals of equality, justice and secularism as guaranteed in the Constitution.
In particular, Basavaraj urged to give representation to all castes and religions by ensuring that no court "gets packed" with more than 20 percent judges from one community.
Senior advocate Indira Jaising told The Leaflet, "Ultimately, the motive is to ensure people identify with judges as 'one of our own' and feel more comfortable in sharing their problems with them.
"An individual from a marginalised community would be more comfortable with the Supreme Court knowing it has a judge who belongs to a marginalised community— this is the true reason for demanding diversity on the Bench," she added.