“Appointments cannot be exclusively made from any isolated group, nor should it be pre-dominated by representing a narrow group. Diversity therefore in judicial appointments to pick up the best legally trained minds coupled with a qualitative personality, are the guiding factors that deserve to be observed uninfluenced by mere considerations of individual opinions.” – Registrar General, High Court of Madras v. R. Gandhi, (2014) 11 SCC 547.
Recently, a presentation was made by the Union Law Ministry before a Parliamentary Panel, according to which, an inequitable representation of backward and minority communities in higher judiciary is evident from the fact that 79% of all the High Court Judges appointed in the last five years belong to the upper castes. The Union Law Ministry also informed the Parliamentary Standing Committee on Law and Justice that social diversity in higher judiciary, as originally devised by the Supreme Court, is missing, despite three decades of the existence of the Collegium system. This is a cause for major concern as diversity builds public trust and confidence in the Judiciary.
The Constitution of India does not talk about the Supreme Court being a representative of any diversity, but the hallmark of a diverse Constitutional Court is its ability to recognise and uphold the pluralism of the country while recommending Judges for their appointments. The Collegium, having supremacy in judicial appointments, must always ensure that all the sections of the society receive representation in appointments as that will help in promoting social diversity and inclusivity. Women and other marginalised sections of the society are under-represented in the Supreme Court as well as the High Courts of the country. In fact, no Judge from a Scheduled Tribe (ST) has been appointed to the Supreme Court since its establishment. Other Backward Classes (OBCs) continue to not find seats on the Benches of the Constitutional Courts. Due consideration needs to be given to suitable candidates from the Scheduled Castes (SCs), Scheduled Tribes (STs), OBCs, minorities, women and LGBTQIA+ community while recommending names for appointment of Judges for the Supreme Court and High Courts.
The Former Chief Justice of India, N V Ramana, in the year 2022, enunciated that India has a population of nearly 140 crores, with around 120 languages, thousands of dialects, more than 4000 communities and more than 700 tribes, therefore, this social and geographical diversity must find its reflection at all levels of the judiciary as diversity on the Bench will promote diversity of opinions, efficiency and with widest possible representation, people will get to feel that the Judiciary is their own. People from different backgrounds will surely enrich the Judiciary with their diverse experiences and standpoints, essential for rightful decision making. Social diversity in appointments will also help in accountability of each member to the other and will ultimately ensure greater public confidence in the functioning of the Judiciary.
Women representation in the Constitutional Courts needs to be increased significantly. Only 11% representation of women has found place in the Supreme Court Benches even after 75 years of our independence. Matters affecting women in the country must be heard by Benches with women representation which will help in a more emphatic approach in decision making. Representation from the Scheduled Castes (SCs), Scheduled Tribes (STs), OBCs, minorities and LGBTQIA+ community is also important as it will help in increasing the public trust in the Judiciary and help in diversity of opinions as well as efficiency. According to the Supreme Court Observer’s Court Data on Caste Diversity at the Supreme Court, the first Scheduled Caste judge to be appointed was Justice K. Varadarajan in December 1980. After his appointment, there was always one Scheduled Caste judge at the Court until the year 2010. However, between 2010 and 2019, no Scheduled Caste judge was appointed until Justice B.R. Gavai. Justice Gavai’s selection in 2019 was also notable because the collegium explicitly considered caste diversity as a criteria when recommending his appointment. It is also worth noting that except for a short period of a year in 1990, two Dalit judges have not served on the Court at the same time. This changed on August 31st 2021, with the appointment of Justice C.T. Ravikumar, who also belongs to the Scheduled Caste community. Justice Ravikumar and Justice Gavai will serve together for at least 3 years. This would mean 6% of sitting judges are from a Scheduled Caste. The representation of Other Backward Classes (OBCs) has also increased with the latest appointments, since Justice M. M. Sundresh belongs to an OBC. However, it appears that there have been no judges belonging to a Scheduled Tribe.
According to India Justice Report, 2020, over a two-year period, twelve High Courts and twenty-seven subordinate courts improved their share of women judges. This means that while one in three judges in the subordinate courts is a woman, in the High Courts, only one in nine judges is a woman. The glass ceiling remains intact. Illustratively, at 72 per cent, Goa had the largest share of women in their subordinate courts. This drops to 13 per cent in the High Court. The biggest improvements in gender diversity in High Courts took place in Jammu and Kashmir (15 percentage points), Chhattisgarh (14 percentage points), and Himachal Pradesh (11 percentage points). Previously, none of the three states had a women judge. The largest fall of 6.3 percentage points was in Bihar, which, as of August 2020, has no woman High Court judge. Since 2018, the high courts of Manipur, Meghalaya, Tripura and Uttarakhand also continue to have no women judges.
Therefore, it will be apposite to state that appointments cannot be made without giving representation to suitable candidates from all sections of the society. Diversity in judicial appointments will help in strengthening the trust and confidence of the public in the judiciary and will also lead to diversity of opinions in judgments because of which decision-making will become robust and emphatic. The Collegium must ensure smooth representation of suitable candidates from Scheduled Castes (SCs), Scheduled Tribes (STs), OBCs, minorities, women and LGBTQIA+ community to bring diverse voices and experiences in the Judiciary. In this way, people belonging to the marginalised sections of the society will be able to see themselves reflected in the judiciary. A diverse judiciary will also help in reducing the gender gap which restrains women from reporting crimes and help in bringing a different perspective to law. Diversity in Judiciary is the need of the hour in the words of Lynne Leitch, Justice of the Ontario Superior Court of Justice in Canada when she said that diversity enhances judicial thinking and perspective as diverse judges alter the judicial discourse; inclusive and diverse judiciary strengths the judicial system; and, inclusivity and diversity inspire and maintain public confidence in the judiciary by demonstrating a commitment to the independence and impartiality of judiciary.
(Muneeb Rashid Malik is an Advocate and can be reached at email@example.com. He tweets @muneebmalikrash).