Explainer: Ensuring social diversity in the appointment of judges

Union Law and Justice Minister Kiren Rijiju wrote to Rajya Sabha MP, and senior advocate, P. Wilson earlier this month – in response to Wilson's letter to him – that the Centre has been requesting the Chief Justices of High Courts to give due consideration to suitable candidates belonging to Scheduled Castes (SCs), Scheduled Tribes (STs), Other Backward Classes (OBCs), minorities and women while sending proposals for appointment of judges. Rijiju's letter clarifies that the Constitution does not provide reservation for any caste or class of persons in the appointment of judges of the Supreme Court and High Courts. VINEET BHALLA and SHWETA VELAYUDHAN explain the issues involved in ensuring social diversity in the Higher Judiciary.

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What was Wilson's letter to the Law Minister about?

This is not the first time that P. Wilson has urged the Government to bring in parity in representation of marginalised groups in appointments to the higher judiciary.

In August, he wrote for diversity to be included as a mandatory criterion in the Memorandum of Procedure (MoP) being deliberated on by the Government for the appointment of judges to the higher judiciary.

In September, he brought up in the Rajya Sabha the "diversity deficit" in the Supreme Court that "calls into question the objectivity of the current system and its inability to recruit from different social groups and ensure social justice". He beseeched Parliament to "step in to ensure social justice and diversity" and the Government to "bring in suitable measures" to solve the problem of poor representation of women judges and judges from historically oppressed and marginalised sections of the society.

In September last year, Wilson wrote to the President, Ramnath Kovind emphasising the need for diversity in the higher judiciary, flagging the "disturbing trend" of declining representation from all social sections in the Supreme Court. His letter warned that the lack of inclusivity in the judiciary would "widen the trust deficit over the last bastion" and present "the likelihood of affinity bias".  According to him, this may mean that the rights of the unrepresented groups are not being properly safeguarded and may eventually lead to the infringement and violation of such rights".

In response to Wilson's concerns, the then Law Minister, Ravi Shankar Prasad reiterated the Government's commitment to social diversity in the appointment of judges in the Supreme Court, in October last year and in January this year.

Are there any previous instances when the executive was concerned about the "diversity deficit" in the judiciary?

In August 1980, then Union Law Minister, P. Shiv Shankar, who was from the OBC community, wrote a letter to the high court Chief Justices requesting that more SC and ST judges be appointed.

In 1988, then Union Law Minister, B. Shankaranand, who was from the SC community, held up several appointments on account of his insistence on appointing Scheduled Caste Judges. It was due to his insistence that Justice S.Ratnavel Pandian, a judge from the OBC category, was appointed to the Supreme Court.

Justice Pandian took note of this diversity deficit in the higher judiciary in his concurring judgment in the Supreme Court's judgment in the Second Judges' case in 1993 thus:
""The Government … has its constitutional obligation to treat all alike and afford them equal opportunity in all spheres including the superior judiciary. … It is essential and vital for the establishment of real participatory democracy that all sections and classes of people, be they backward classes or scheduled castes or scheduled tribes or minorities or women, should be afforded equal opportunity so that the judicial administration is also participated in by the outstanding and meritorious candidates belonging to all sections of the society not by any selective or insular group."
He noted in his judgment that as per government data, as on May 25, 1993, the number of judges belonging to OBCs in the then 18 high courts in India did not exceed 10 per cent of their total strength. The number of SC and ST judges put together did not exceed four per cent of the total high court judges, while only three per cent of high court judges were women.

However, neither Justice Pandian, nor the majority judgment, gave any specific direction to improve the representation of these groups within the higher judiciary.

This concern was echoed in November 1998, by the then President K.R. Narayanan. While approving the appointment of four judges to the Supreme Court, he made the following noting on the official file:
"While recommending the appointment of Supreme Court Judges, it would be consonant with constitutional principles and the nation's social objectives if persons belonging to weaker sections of society like S.C.s and S.T.s, who comprise 25 per cent of the population, and women are given due consideration.
Eligible persons from these categories are available and their under-representation or non-representation would not be justifiable. Keeping vacancies unfilled is also not desirable given the need for representation of different sections of society and the volume of work which the Supreme Court is required to handle."

In response, the then Chief Justice of India had reportedly stated that "merit alone has been the criterion for selection of Judges and no discrimination has been done while making appointments."

What does history say about the social profile of Supreme Court judges?

A total of 256 Judges have been appointed to the Supreme Court since the inauguration of the court. The current working strength of the court is 33 with one vacancy.

American political scientist G.H. Gadbois, in his book 'Judges of the Supreme Court of India: 1950-1989', revealed that over 40 per cent of the judges at the Supreme Court at any time were Brahmins, while close to 50 per cent were from other forward castes. The total number of SC, ST and OBC judges in the Supreme Court never crossed 10 per cent in this period, Gadbois had found.

Also read: Securing the Judicial System from Political Retribution

From 1950 to date, there have only been five judges at the Supreme Court from the Scheduled Castes (SCs) – Justices A. Varadarajan, B. C. Ray, K. G. Balakrishnan, and the currently serving Justices B. R. Gavai and C. T. Sivakumar. Of these,  Justice Balakrishnan served as the 37th Chief Justice of India from January 2007 to May 2010.  Justice Gavai too is in line of succession for the post of the Chief Justice of India, in terms of his seniority in the Apex Court.

Justice H.K. Sema, from Nagaland, who served the Supreme Court from 2002 to 2008, remains the only judge from the Scheduled Tribes (STs).

Until 1980, there was no representation from the Other Backward Classes (OBC) in the Supreme Court. The first judge to be appointed from the OBCs was Justice Pandian, and the second was Justice K. N. Saikia. Justices K. S. Hegde (appointed in 1967) and A. N. Alagiriswami (appointed in 1972) were members of castes which were later designated as OBCs. Currently, Justice M. M. Sundaresh of the Supreme Court belongs to the OBC.

The first woman to be appointed to the Supreme Court was Justice M. Fathima Beevi, a former judge of the Kerala High Court, in October 1989. The number of female Judges in the Supreme Court rose to 11 over a period of time since then, with the current strength of women Judges at the Apex Court being the highest (four) at any point of time. However, only two of them have been part of the Supreme Court collegium for appointment of judges to the Supreme Court: Justice Ruma Pal and Justice R. Banumathi.

Historically, there has always been a "Muslim seat" at the Supreme Court, that is, one seat at the court has been unofficially reserved for a Muslim judge. An undeclared reservation at the Federal Court – wherein Justice S. Fazl Ali was appointed in June 1947 – seems to have been the beginning of this convention.

As the number of judges at the Supreme Court has risen over the years, the number of seats impliedly "reserved" for Muslims has also gone up. After the retirement of Justice Ali, he was replaced successively by Justice Ghulam Hasan, who was followed by Justice S.J. Imam.

As described in detail by author and advocate Abhinav Chandrachud in his book 'Supreme Whispers: Supreme Court Judges, 1980-90', Justice M. Hidayatullah was the one exception to the "Muslim seat" phenomenon, as he insisted that he be appointed based on his own merit and not on the "Muslim seat". He was accordingly appointed to the Supreme Court in December 1958, when Justice Imam was still at the court. After his retirement, the "Muslim seat" was filled by Justice M. H. Beg (1971-78). There have been four Muslim CJIs in the Supreme Court, Justice Hidayatullah (1968-70), Justice Beg (1977-78), Justice A.M. Ahmadi (1994-97) and Justice Altamas Kabir (2012-13).  During Justice Ahmadi's tenure as the CJI, Justice M Fathima Beevi, the only ever Muslim female Supreme Court judge, was appointed to the Court.  In 2012, two Muslim judges came to be appointed to the Supreme Court – Justices M.Y. Eqbal and F.M.I. Kalifulla.

Presently, Justice S. Abdul Nazeer is the only sitting Muslim judge.

From the Sikh community, Justices R.S. Sarkaria, Kuldip Singh, H.S. Bedi and J.S. Khehar (who also served as CJI in 2017) have been the only four appointees to the Supreme Court. Whereas, from the Zoroastrian community, Justices D.P. Madon, S.H. Kapadia, S.P. Bharucha, S.N. Varaiva and  R.F. Nariman have been appointed. Justices Bharucha and Kapadia served as CJIs in 2001-2002 and 2010-2012 respectively. Justice Nariman, who recently retired in August, is also an ordained Parsi priest adept at performing religious ceremonies.

There have been a relatively less number of Christian judges – namely, Justices Vivian Bose, K.K. Mathew, T.K. Thommen, K.T. Thomas, Vikramjit Sen, Cyriac Joseph, Kurian Joseph, R.Banumathi  and the currently serving Justice K.M. Joseph.

What about social diversity among High Court Judges?

The National Commission for Scheduled Castes (NCSC) in its 2016 report on 'Reservation in Judiciary' states that as of 2011, there were only 24 judges belonging to SC/ST against a total of 850 judges in all the 21 High Courts. However, 14 out of the 21 High Courts did not have a single SC/ST judge. There are currently 25 High Courts with a total sanctioned strength of 1098 Judges and 406 vacancies. We have not been able to access any official data regarding the number of SC and ST judges currently serving the High Courts.

The NCSC's 2016 report states that judges continue to be drawn mostly from the very section of the society which is infected with age-old social prejudices. In most of the cases, social inhibitions and class interests of such judges do not permit them full play of their intellectual honesty and integrity in their decisions, the report adds.

On the controversy surrounding the former Judge of Calcutta High Court, Justice C.S. Karnan, belonging to a Scheduled Caste, whom the Supreme Court sentenced to six months imprisonment for contempt of court, the report said: "…even person of his stature is suffering victimisation at the hands of his fellow judges belonging to higher castes".
The report also refers to how 17 district judges of Chhattisgarh, all belonging to SC or ST, were removed from service allegedly without valid reasons when they had five to 10 years' service to go and were maturing for elevation as High Court Judges. The report, therefore, pleads for reservation in judiciary to bring "constitutional balance between the Legislature, Executive and Judiciary in order to rightly serve the cause of social justice and equity." But reservation for any category of citizens does not enjoy support within the judiciary.

As per data sourced from the Department of Justice, Government of India, of the 627 judges then serving in the High Courts as of October 1, only 66, that is, 10.52  per cent, were women. Five high courts did not have a single female judge.
Chandrachud writes in his book that the first woman to be appointed a High Court judge in India was Justice Anna Chandy, who was appointed to the Kerala High Court in February 1959. Chief Justice Leila Seth of the Himachal Pradesh High Court was the first female chief justice of any High Court in India.

What is the scene in the subordinate judiciary?

In 2018, the data submitted by courts from the subordinate levels of the judiciary of 11 states to the Law Ministry stated that the representation of OBCs in the subordinate courts added up to a measly 12 per cent. The data further stated that SCs comprised less than 14 per cent judges in the subordinate judiciary, including district courts, whereas STs comprised about 12 per cent of the judges. This, in spite of all states providing for reservation for SC, ST and OBC communities in lower judiciary appointments, with some making reservations applicable to the post of District Judges as well.
This information was made available after the Government wrote to the Registrar Generals of 24 High Courts in November 2017, requesting data on reservation provided to SC, ST, OBC and women along with their respective working strengths. However, only 11 States, namely Madhya Pradesh, Delhi, Odisha, Punjab, Chhattisgarh, Haryana, Assam, Jharkhand, Himachal Pradesh, Tripura and Sikkim, submitted the required information.

According to a study conducted by the Vidhi Centre for Legal Policy, the representation of female judges in the lower courts has gone up from 28 per cent to 30 per cent between 2018 and 2020. The marginal improvement is a positive sign.

What prevents the judiciary from ensuring social diversity?

A report prepared by the American bar Association's Center for Human Rights, published last month, reveals the "persistence of implicit biases of upper-caste judges toward their colleagues from the Dalit community". It quotes a former Chief Justice of a high court as disclosing that "he faced resistance from his upper-caste colleagues whenever he considered a Dalit lawyer for appointment as a judge in that High Court."

Also Read: Top upper caste judges in India 'biased' against Dalit colleagues: US Bar Association report

A retired upper caste Supreme Court judge quoted in the report admits the existence of a bias against Dalit judges in the higher judiciary that they are less meritorious since they are appointed through reservation, and which is why they don't get easily promoted.

Another retired Supreme Court judge, who was reportedly part of the Supreme Court collegium for two years in the last decade, was quoted as saying that "as there were no Dalit judges with seniority in High Courts during his time on the bench, the issue of ensuring representation of Dalits in the Supreme Court was not discussed as part of the collegium."
Unless this bias is addressed, social diversity within the higher judiciary is unlikely, in spite of nudging from the President or the government.

How did Parliament seek to ensure social diversity in judiciary?

The Report by the Parliamentary Committee on the Welfare of SCs and STs chaired by Parliamentarian Kariya Munda, submitted in 2001, recommended in this regard, that Articles 124 and 217 of the Constitution be suitably amended to include the judiciary within the ambit of reservation, and simultaneously a Judiciary Act may be enacted to spell out the governing principles of the proper functioning of the Judiciary, especially the Supreme Court and the High Courts.
Thereafter, the Report by the Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, headed by Parliamentarian E. M. Sudarsana Natchiappan, submitted in 2006 also considered this issue in depth and categorically recommended reservation in favour of the SC, ST and OBCs in the higher judiciary, as with recruitment to all other public services in the country.

Another recommendation is the formation of an All India Judicial Service to recruit judges for the subordinate judiciary across the country, with reservation being applicable to the post of District Judges in all states. But there have been strong reservations against this proposal on the ground of federalism.

Also Read: Rethinking the Debate on Reservations

Is there scope for reform?

A pertinent recommendation of the the 2002 report of the National Commission to Review the Working of the Constitution, chaired by Justice M.N Venkatachaliah, is reproduced below:

"In view of the weighty opinion against the formal introduction of reservation in the higher judiciary, and the fact that over fifty years, the progress of education, however tardy, has certainly produced adequate number of persons of the SC, ST and BC in every State who possess the required qualifications, having necessary integrity, character and acumen required for Judges of Supreme Court and High Courts for appointment as Judge of the superior judiciary, a way could and should, therefore, be found to bring a reasonable number of SCs, STs and BCs on to the Benches of the Supreme Court and High Courts … so that on the one hand the overwhelming opinion against formal reservation in the Supreme Court and High Courts is respected and on the other hand, the feeling of alienation of the vast majority of Indians comprising SCs, STs and BCs that, in spite of having persons of requisite calibre and character among them, they are being ignored in the appointment of Judges, is resolved."   

A consensus across the board among various stake-holders, therefore, is essential to achieve desirable social diversity in judiciary.

(Vineet Bhalla is a Delhi-based lawyer, and Assistant Editor at The Leaflet. Shweta Velayudhan is a corporate lawyer who is a consultant, primarily in the field of labour and employment law, and a part of the outreach team at The Leaflet. The views expressed are personal.)