Judicial diversity in India: exploring the ‘unwritten’ criteria of gender, religion, caste and regionality in appointments to the Supreme Court

The jurisprudence cultivated by the Supreme Court in having primacy over appointments need not be the reason for lack of scrutiny on grounds of diversity. The court can institutionalise appointment criteria itself along the lines of religion, caste, regionality and gender in a manner that ensures non-arbitrariness.

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INDIA is one of the only democracies where judges are authorized through a bespoke jurisprudence of their own creation to appoint judges. While Articles 124 and 217 of the Indian Constitution govern appointments to the Supreme Court and High Courts respectively, they speak of a consultative process between the Executive and the Judiciary in selections. However, through constitutional interpretations curated in the backdrop of intense power tussles between these two pillars of the State, the collegium system of appointments has been devised.

Herein, the Chief Justice of India and the next four senior most judges deliberate on appointments, with the role of the Executive eschewed to the periphery. This process takes place behind closed doors, and is characterized by staunchly protected opacity and a complete lack of public and political scrutiny. The narrative relied on for the above remains one of safeguarding the independence of the Judiciary.

The scope of this piece, however, is not to argue the merits of this secretive collegium system or executive primacy in appointing judges. Rather, it seeks to explore what are the criteria, both written and unwritten, used to determine who should be appointed as a judge, whoever be their selecting authority.

The parameters envisaged by the Constitution are limited to Articles 124 and 217, which mandate the 'written' eligibility of Indian citizenship and certain professional credentials such as a particular number of years in practice as an Advocate or a judge. These criteria are hardly enough to illuminate how different judges over the course of time were appointed. Thus, beyond these explicitly stated requirements, the composition of the Indian judiciary over time, brings to light certain 'unwritten' considerations that go into appointing a judge such as gender, religion, caste and regionality. In an effort to situate the argument of judicial independence, I will briefly put forth the jurisprudence of the 1980s and 1990s in the four 'Judges cases'. This is necessary for it cultivates the opacity in appointments which in turn directly impacts present day diversity on the Bench.

The piece concludes with suggestions for certain reforms that can aid in meritorious, equitable and inclusive representation in the Indian Judiciary.

Also read: "Opaque system erodes the independence of the judiciary", says Member of Rajya Sabha, John Brittas

Four 'judges cases' and the collegium system

An era of conflict with the executive led to the present-day Collegium system. The 1970s were characterized by 'punitive' supersessions of judges in the aftermath of certain verdicts against the union government, the last of which was the illustrious Kesavananda Bharati case of 1973.

The use of the word 'punitive' herein should be noted with care as it was not outside the constitutional realm of things for the executive to appoint the Chief Justice it so desired; however, such was not the practice. The seniority norm, an unwritten criterion that the senior most puisne judge becomes the next Chief Justice, had never been deviated from, with limited exceptions (such as in the case of Justice Syed Jafer Imam, who was to become Chief Justice of India [CJI] following Justice B.P. Sinha's retirement, but was persuaded to resign by then Prime Minister J.L. Nehru due to his ill health, and physical and mental incapacitation. The next senior most judge, Justice P.B. Gajendragadkar was made CJI. The norm thereafter had become an unspoken rule). In 1973, the Supreme Court, through Kesavanda Bharati, irked the Executive of the day by holding through a 7:6 majority that while Parliament had the power to amend the Constitution, it could not amend its 'basic structure'. This led to punitive supersessions – Justices J.M. Shelat, K.S. Hegde and A.N. Grover, the senior most judges who authored the majority decision, were superseded while Justice A.N. Ray, whose dissenting opinion favoured the government, was appointed the next Chief Justice of India. All three judges who had been superseded resigned.

In 1975, emergency was imposed, and the period was characterized by not only the extinguishment of fundamental rights, gags on media reportage, and politically motivated arrests of dissenters, but also transfers of judges en masse at the behest of the government. This tumultuous relationship between the executive and judiciary characterized the backdrop against which the four Judges Cases were decided.

S.P. Gupta vs. Union of India (1981), also known as the first Judges case, deliberated on the appointment of additional judges to the High Courts under Article 217(1). A seven-judge Constitution bench of the Supreme Court herein held that the power of appointing judges, vested solely with the executive. The President, in the language of the Article, in effect meant the union government, whose authority assumed primacy, subject only to effective consultation with the functionaries mentioned therein, that is, the Chief Justice of India, the Governor and the Chief Justice of a high court. Where there were differences in the consultation process, it was for the union government to decide whether an appointment should be made or not. In this context, the Chief Justice of India could not override the opinion of the Governor, or the Chief Justice of the State and they were entitled to equal weight.

On the possibility that such a scheme under Article 217(1) would erode the independence of judiciary, the court held that the same must be determined within the framework of the Constitution itself, as part of the basic structure. In this light, while it must be shielded from influences of the executive and other external pressures, total insulation could breed an "ivory tower attitude", the court held.

Supreme Court Advocates-on-Record Association vs. Union of India (1993) or the second Judges case partially overruled its predecessor and held that the Chief Justice of India had primacy in the consultative process and by corollary, in the appointment of judges in terms of both Articles 124 and 217. Thus, no judge could be appointed to the Supreme Court or high courts unless such appointment was in conformity with the opinion of the Chief Justice of India. Such an opinion was characterized as plural in nature, being reflective of the opinions of two brother judges as well. Thus, this gave rise to the birth of a nascent collegium system.

In the third Judges case, the President of India made a reference to the Supreme Court in exercise of his powers under Article 143 on the consultation process between the Chief Justice of India and his brother judges in matter of appointments. Furthering the argument that judicial opinion in appointments must remain untrammeled to safeguard the institution's independence, a nine-judge Constitution bench of the Supreme Court expanded the collegium system to include the Chief Justice of India and four senior-most puisne judges of the Supreme Court.

This is the current prevailing practice, as re-affirmed by Supreme Court Advocates on Record Association v. Union of India (2015), also known as the fourth Judges case, where the Supreme Court struck down the 99^th Constitutional Amendment Act which proposed a National Judicial Appointments Commission to appoint judges.

Thus, a jurisprudence was cultivated wherein opaque deliberations by the collegium system governed the language of the written criteria in Articles 124 and 217 of the Constitution. One must look elsewhere for a more holistic picture of appointments and the reasons behind them.

Also read: Securing the Judicial System from Political Retribution

Unwritten criteria of gender, religion, regionality and caste in appointments

Contrary to the ease with which it is assumed a discourse on this unwritten criteria can take place, there is a complete lack of authoritative literature or even statistical information on the religion and caste of all judges appointed to the higher judiciary. No official record is maintained on any ground, other than the list of names of the judges appointed (from which predominant information as to gender, religion and caste must be gleaned), details of present and parent high courts and finally, tenure.

The government maintains in response to Right to Information Act applications and letters that since appointments to the Supreme Court and High Courts are made under Articles 124 and 217, in which reservation of any kind is not a criteria laid down, it does not maintain a database of such information of the appointees.

This abundant gap in literature available in the public domain has been covered over the years through interview based research along the parameters of caste, religion and region, among others, of multiple judges of the Supreme Court, primarily by American political scientist George H. Gadbois Jr. in his seminal work 'Judges of the Supreme Court of India, 1950-1989' (2011) covering the first four decades of the Supreme Court's history, and thereafter, by lawyer Abhinav Chandrachud in 'The Informal Constitution: Unwritten criteria in selecting judges of the Supreme Court' that covers the next 20 years or so.

It is worth noting that in the first 40 years of the Supreme Court's inception, all its appointees had been men. The first female judge, Fatima Beevi, was appointed only in 1989. Further, the collegium system of appointing judges did not exist and primacy vested with the Executive in consultation with the Chief Justice of India in deciding who should be appointed. However, keeping these differences aside, exploring these early years of the court speak volumes as to the unsaid criteria when it comes to appointments to the judiciary.

It had been admitted during this time that religion had been an important deciding criteria, borrowing from some notion of proportional representation with India's population statistics. From the inception of the court, there had been the convention of a 'Muslim seat', as per Gadbois, though to what degree this has been in consonance with the idea of proportionality is unexplored. Muslims are not just one of many minority groups in India; they constitute one of the largest Muslim populations in the world and are therefore a major minority. In 1980, only 4.3 per cent of the 351 judges comprising the high courts and the Supreme Court were Muslim, while in 1988, out of 400, approximately 27 judges or 6.8 per cent were Muslim, according to Gadbois. Contrasting this to present day – as of September 1, 2021, out of a total 664 judges only 30, that is, 4.5 per cent are Muslim. (Since no diversity criteria other than gender is noted or highlighted in the public domain, I have compiled the present-day statistics as to religion and caste from lists of all present appointments to the High Courts and the Supreme Court.) Even the Supreme Court has only one Muslim judge out of 33 sitting judges, which is an alarmingly low percentage of three per cent. Bear in mind that Muslims constitute 14-15 per cent of India's total population.

Keeping in mind the substantial increase of total sitting judges to 664 in the present day, the comparatively and substantially lower percentage figure of 4.5 per cent Muslim judges from 6.8 per cent in 1988 when the total number was only 400, is something to ponder, as is the performance of the Supreme Court on this parameter. As to other minority religions, there exists very little information by way of scholarship or statistics to authoritatively comment on diversity.

Also read: Explainer: Ensuring social diversity in the appointment of judges

In terms of caste, not only has it been a criterion in determining appointments (whilst not specifically referring to hegemony of Brahmins or placing inordinate weight on the caste factor, Justice P.B. Sawant, former judge at the Supreme Court and the Bombay High Court, has admitted in his book 'Judicial Independence: Myth and Reality' (2005) that it has, along with political considerations, class, community and region, played dominant roles in the selection criteria), predominantly there has remained a Brahmanical and upper caste hegemony.

Whilst there is not enough compelling data to suggest that the latter is the result of the former, one can surmise enough from a small sample size of all CJIs till date, where at least 14 of the 48 CJIs have been Brahmins (this list of Justices M.P. Sastri, B.K. Mukherjea, P.B. Gajendragadkar, K.N. Wanchoo, A.N. Ray, Y.V. Chandrachud, R.S. Pathak, E.S. Venkataramaiah, Sabyasachi Mukherjee, Ranganath Misra, M.N. Rao Venkatachaliah, Dipak Misra, S.A. Bobde and N.V. Ramana as Brahmin CJIs has been compiled through knowledge of their caste that has been in public domain, that is, either as part of a biography or as a self-admitted fact), with many more from other upper castes. This constitutes roughly 29.1 per cent of the CJIs India has had so far.

Caste as a criteria of selection, however, has been unimpeachably witnessed in the case of Justice A. Vardarajan, who was the first appointee to the Supreme Court from the Scheduled Caste [SC] community. It was admitted by Justice Y.V. Chandrachud, the then CJI, and P. Shiv Shankar, the then Union Law Minister, that caste was a criteria in his selection as the SC community needed to be represented. After Justice Vardarjan's retirement, Justice B.C. Ray, who replaced him also belonged to the same community, and acknowledged in an interview that his caste had been why he was chosen, according to Gadbois' book. Thus, informally a practice was cultivated to create an 'SC seat'.

Presently, the Supreme Court composition continues to carry forth paltry representation of the SC community, with only two out of the 33 sitting judges belong to the community (with one being appointed as recently as September 2021). This amounts to six per cent of the total judges at the court; for the sake of perspective, SCs comprise 16.6 per cent of India's total population.

As to women's representation on the Bench, as noted earlier, the first female appointment, Justice Fatima Beevi, came only in 1989. Even thereafter, women's representation had been far from substantive. From about the 256 judges appointed to the Supreme Court since its inception, only 11 have been women, and only two of these 11 have been a part of the collegium – Justice Ruma Pal and Justice R. Bhanumati.

The following is a comparative overview of the number of women judges in the higher judiciary in India, as per the database of names maintained with the Ministry of Law and Justice as on September 1 last year.

Total female representation on the Bench of the higher judiciary remains a mere 11.2 per cent, seven decades after independence. Not only that, several high courts did not have even a single female judge in 2021, including those at Manipur, Meghalaya, Orissa, Patna, Tripura and Uttarakhand.

Also read: Deeply ingrained patriarchy primary reason for the under-representation of women in judiciary, says CJI N.V. Ramana

Whilst there is no Constitutional requirement that the composition of the court should be diverse in terms of the regions of India represented, as a matter of convention, it can be gauged to be an important selection criterion. As per standard practice, a judge is meant to belong to the region or state where they were first appointed as a high court judge, irrespective of their own affiliation to another region in terms of being born or raised elsewhere, according to Chandrachud's book. Often, multiple judges from a particular state can serve simultaneously, or sometimes a state can go entirely unrepresented; however, more or less the practice has been to be mindful of state representation. When a judge from one place has retired, they have often been replaced by a judge from the same place, in consonance with the practise of earmarking certain seats as 'Muslim' or 'SC'. For example, during Justice Shastri's Chief Justiceship, Justice P.N. Bhagwati was chosen to fill the vacancy caused by Justice H.J. Kania's death; both hailed from the Bombay High Court. 

Diversity in judiciary: what can be done going forward?

While on the one hand it can be argued that diversity of any kind enhances the court's legitimacy and builds public confidence, there is considerably more merit in substantive diversity. Often, diversity becomes a token symbol to evoke a feeling of representation and inclusivity in the highest courts. American lawyer Sherrilyn A. Ifill, when speaking of racial diversity in the U.S. Supreme Court, suggested that a judge, constituting a part of the court as a first may by virtue of their non-traditional background, becomes a symbol of diversity. For example, Justice Clarence Thomas in the U.S., as an African American, ushered in an era of racial diversity on the bench in matters of appearance; however in his deeply conservative affiliations, he did not conform to the same opinions held by his community in civil liberties cases, Ifill has written. In such scenarios, representation becomes a matter of optics and favourable statistics to suggest diversity.

Also read: Parliamentary committee calls for socio-economic diversity in judiciary; flags large number of vacancies in high courts, SC

As opposed to the U.S. where the entire Supreme Court adjudicates on matters before it, in the Indian scenario, the composition of judges hearing a particular case gets decided by the roster system as assigned by the CJI. It is easy to see how even with a diverse setup of judges, the power of constituting benches remains in the hands of the master of the roster, who can do away with a representative bench if they so desire. For example, in the composition of the bench for the Ayodhya title dispute, Justice Abdul Nazeer, as a Muslim judge, could have been overlooked by the Chief Justice. However, since he was on the bench, the optics became one of Muslim interests also being given due weightage. Though in this light, one might, like the argument suggesting diversity as symbolism in the case of Justice Thomas, draw conclusions as one sees fit. Or one might even argue that to suggest that one person can represent the collective interests of an entire community is a subversion of diversity through an assumption of homogeneity.

The principle of merit being the sole criterion in appointment of judges is constantly reinforced by the judiciary. As is the argument that deviating from the same to consider representative and inclusive factors would strike a blow to this over-arching principle. Instead of formulating the discourse on diversity and merit as conflicting and mutually exclusive, there is an overwhelming possibility for it to be harmoniously construed.

First, merit in the Indian scheme of things is an abstract principle, now completely dictated by the opinions of the CJI and his collegium of brother judges. It is not quantified as a minimum benchmark as per the deliberations in the Constituent Assembly Debates, or in our Constitution or anywhere else. When a numbers-based benchmark is not set, the idea of merit becomes contextual. In the eyes of one Chief Justice, whether consciously or sub-consciously, a person can completely personify merit, whilst in another's, the same person's credentials can manifest in their immediate rejection. Merit then becomes a catchall for the qualities a particular Chief Justice finds meritorious, and this can take wide ranging hues and colours – from ensuring a strict divide between the judiciary and the executive, to being a neutral adjudicator, to not taking on the ruling establishment. Judges can seek, through such an argument, to replicate their own notions of merit.

Second, as unsaid conventions and practices (not provided by law under Articles 124 and 217) have come to be admitted by judges in their selection criterion along with arbitrary ideas of merit, the appointment process need not be shrouded in secrecy merely for the sake of maintaining the 'independence of the judiciary'. India is one of the only countries pursuing with dogged defiance the argument that even the most minimal role played by the executive in appointing judges can lead to the complete erosion of the independence of the judiciary.

(In this light the deliberations of Dr. B.R. Ambedkar in the Constituent Assembly Debates rings true. On May 24, 1949, he said: "There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself. And the question is how these two objects could be secured…With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent, person. But after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I therefore, think that is also a dangerous proposition.")

In some of the most prominent world powers such as the U.S., as also in several other countries, the authority to appoint judges lies with the President, and there is negligible scholarship to suggest that this has directly resulted in the subversion of their respective judiciaries' independence. To suggest only judges are empowered to appoint judges and that any other method of appointment strikes at the basic structure of our constitution, mimics the ivory tower attitude portended in the first Judges case.

Also read: With the widest possible representation, people get to feel it is their own judiciary: CJI Ramana

In the crisis of legitimacy characterising the highest courts at this time, further opacity cannot be said to be the way forward. The jurisprudence cultivated by the court in having primacy over appointments need not be the reason for lack of scrutiny on grounds of diversity. The Supreme Court can institutionalise appointment criteria itself along the lines of religion, caste, regionality and gender in a manner that ensures non-arbitrariness.

The question of diversity and merit are not conflicting. A minimum threshold of competence and merit can always be ensured whilst also giving way to inclusivity. Further, as to requirements from the union government, annual statistics of all judges on the parameters discussed above should be available in the public domain. Information as to gender and region are already available; however caste and religion must also be published. The argument that there is no reservation in higher judiciary and therefore such data is not maintained does not hold weight.