The argument for a fair representation of different sections of society in the Supreme Court is problematic. Justice should be delivered irrespective of the religion, caste, class, or gender of the Judge, the plaintiff or the defendant because impartiality is not only a virtue but a necessity in the dispensation of justice, writes PARSA VENKATESHWAR RAO JR.
IN a historic first, nine new Supreme Court Judges, including three women, were sworn in by Chief Justice of India (CJI) N.V. Ramana in one go on Tuesday, taking the strength of the top court to 33.
Out of the three women Judges— Justices B.V. Nagarathna, Hima Kohli and Bela M. Trivedi—Justice Nagarathna is set to become the first woman CJI in September 2027.
In a diverse society like India, representation of different religions, castes, classes, regions, social groups, gender, the marginalised and oppressed in the executive, the legislature, the judiciary and important government institutions is an important issue.
For example, out of the nine Judges, who took oath on Tuesday, Justices C.T. Ravikumar and M.M. Sundresh belong to the Scheduled Caste (SC) and the Other Backward Classes (OBC) categories respectively. In May 2019, Justice B.R. Gavai, a Dalit, was one of the four Judges appointed to the top court. Justice Gavai will be in line to take oath as CJI on May 13, 2025.
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Arguments for fair representation
Though these factors should not be considered in the appointment of Judges, the assumptions behind the arguments for a fair representation of different sections of society in courts should be examined.
One could argue that justice will be better served if a person from a weaker section is appointed an apex court Justice, or a woman Justice will show greater empathy and sensitivity in cases involving women. The same argument extends to Scheduled Castes and Other Backward Classes. Surprisingly, not much has been said about Scheduled Tribes.
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This line of argument is quite problematic, if not dangerous.
Justice should be delivered irrespective of the religion, caste, class, or gender of the Judge, the plaintiff or the defendant. The judiciary should be fair to all citizens. Impartiality is not only a virtue but a necessity in the dispensation of justice.
However, this does not exclude the possibility and the need to choose the best from different sections of society—but delivering justice to a particular section of society should not be a criterion in such appointments.
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Judicial appointments in U.S.A.
In contrast, judicial appointments, especially to the Supreme Court, in the United States of America have a strong political orientation. Though the issue of fair representation of underrepresented social groups—especially women and African-Americans—in the top court is often under scrutiny (of the nine judges currently serving on the U.S. Supreme Court, one is African-American, and three are women, out of which one is Latina), it is the conservative and the liberal ideologies of the appointees that is the subject of public discourse.
This issue generally boils down to whether the American president is from the Democratic or Republican political parties. For example, the appointments of Justices Neil Gorsuch in 2017, Brett Kavanaugh in 2018 and Amy Coney Barrett in 2020 to the Supreme Court by then-U.S. President Donald Trump created quite a stir with the balance tilting in favour of conservatives Justices by 6:3.
However, the three conservative Judges didn’t turn out to be partisan Republicans, with the U.S. Supreme Court not entertaining the petitions filed by the Republican Party and Trump supporters contesting the verdict of the 2020 U.S. Presidential election results in some states.
Recently, Justice Barrett rejected an emergency plea of Indiana University students seeking to block the institute’s requirement of mandatory vaccination against COVID-19, belying expectations of siding with the anti-vaccination lobby. Similarly, Chief Justice John Roberts has often deviated from his supposedly conservative position on many occasions.
This is the reason Justice Stephen Breyer, who belongs to the liberal minority, has expressed alarm about the ideological interpretation of court appointments. Justice Breyer believes that the primary obligation of a Supreme Court Judge is to deliver justice and interpret the law correctly irrespective of his ideological leanings. Dividing the Supreme Court into conservatives and liberals will undermine the institution, according to him.
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Case in point: Sabarimala verdict
In September 2018, then-Supreme Court Justice Indu Malhotra, the lone woman Judge on a five-Judge Constitution Bench headed by then-CJI Dipak Misra that revoked the ban on entry of women of menstrual age to the Ayappa temple in Sabarimala, Kerala, gave a dissenting opinion.
As a lone voice of dissent in the 4:1 verdict, Justice Malhotra argued that notions of rationality cannot be invoked in matters of religion. What constitutes essential religious practice is for the religious community to decide, not for the court. She held that India is a diverse country, and constitutional morality would allow all to practise their beliefs.
Also read: Justice Indu Malhotra’s Unforgettable Journey
It was expected of Justice Malhotra to favour the entry of women to the temple. But she chose to take a different stand, saying that Article 25 of the Indian Constitution allows every citizen the right to freely profess, practise and propagate their religion. Her stance, based on her interpretation of the Constitution, may appear conservative but it has its basis in legal interpretation, not ideological orientation.
Therefore, women Judges or those belonging to the SC and the OBC categories in the Supreme Court will interpret the law, not their ideological positions, while giving verdicts.
(Parsa Venkateshwar Rao Jr. is a senior Delhi-based journalist, political commentator, and author of several books. The views expressed are personal.)