Lack of Diversity Among SC and HC Judges Not a New Issue, Here's What We Need...

There is no non-availability of candidates from underrepresented groups.

Reports of "inequitable representation of backward and minority communities" in the higher judiciary, as informed recently by the law ministry to a parliamentary panel, have sprung debates on the mode and method of appointment of judges.

Reportedly, the Union government has said that from 2018 to 19 December 2022, 537 judges were appointed to various high courts. Of this, 79 percent hailed from the General Category, 11 percent from Other Backward Classes, 2.6 percent from the minority communities, 2.8 percent from Scheduled Castes, and 1.3 percent from Scheduled Tribes. 

But neither are these reports unprecedented nor is this problem of "inequitable representation" new.

What History Shows

It was reported in the Sunday Express on 19 August 2007 that the Parliamentary Standing Committee on Law and Justice, in its report submitted that month, was said to have recommended reservation for SCs, STs, and OBCs in the higher judiciary, in a bid "to meet the ends of social justice and equity."

"The committee has invited attention to the fact that there are hardly twenty judges belonging to the SCs and STs among the 610 judges of various high courts in the country," the report said.

But this crisis of inadequate diversity in higher judiciary predates that as well.

Profiling the judges who sat in the Supreme Court between 1950-1989, George H Gadbois Jr, a scholar specialising in Indian law and judicial behaviour, wrote in his book (Judges of the Supreme Court of India 1950–1989):

"Caste, the most important differentiator in Indian social life, is a better indicator of social origin and class than parental occupation. Seventy-seven of the ninety-three judges were Hindus. The most striking thing about these tables is that Brahmins, one-nineteenth of the nation's population, held thirty-three of the judgeships."

Former Supreme Court Justice VR Krishna Iyer, who was constantly writing to the Law Minister and the Prime Minister about the need to appoint judges for the higher judiciary from other communities, once spoke about how "the lowest of the lowlies in Kerala, the 'Nayadi' tribals should be appointed as High Court judges and heads of administration."

He pointed out that if a 'Nayadi' was appointed as a judge of the high court, he would not be second to any of the judges of the high court "in ability and aptitude."

For this, a contempt petition was filed in 1990 by an advocate of the Kerala High Court. When his reply was called on the request for according permission to initiate contempt, Justice Iyer gave a long explanation, in which he also recalled Dr BR Ambedkar's words:

"The Hindus wanted the Vedas, and they sent for Veda Vyasa who was not a caste Hindu.  The Hindus wanted an epic, and they sent for Valmiki who was an untouchable.  The Hindus wanted a Constitution and they sent for me." (P Krishnaswamy, "VR Krishna Iyer A Living Legend," Universal Law Publishing Co. Pvt Ltd, 2000). 

Lack of Representation Was Even Acknowledged, but...

The first legal attempt for reservation in appointments to the higher judiciary in terms of Article 217 came up before the Kerala High Court. The high court, in a judgment (also dated 1990), rejected the plea and said:

"Article 16 makes a distinction between 'office' on one hand, and 'posts and appointments' on the other.  Article 16(1) guarantees that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any 'any office'.  But, Article 16(4), unambiguously states that provision for reservation, could be made for appointments or posts, and not any 'office'.  Principles of reservation do not extend to all offices."

Ironically, in the third judges' case, a nine-judge bench while reinforcing the collegium system of appointment also ventured to express its opinion on the lack of representation of deprived classes in getting a judicial appointment.

Justice Ratnavel Pandian said: "I venture to express that the right of entry into superior judicial office is not the exclusive prerogative of any particular coterie or privileged class or group of people. To say differently, it is neither inheritable nor a matter patronage."

No Scarcity of Candidates from Under-Represented Groups

The National Commission to review the working of the Constitution headed by Retired Chief Justice of India MN Venkatachalaiah, in its report (2000), said:

"Over 50 years of the progress of education, however tardy, has certainly produced adequate number of persons of the SC, ST, and OBC in every State who possess the required qualification having necessary integrity, character and acumen required for judges of Supreme Court and High Court for appointment as Judge of the superior judiciary."

Therefore, it is not a question of the non-availability of candidates from other underrepresented groups.

The National Commission for Scheduled Castes, after taking into account all the previous reports, recommended to the Parliament to amend the Constitution and to provide for a National Judicial Commission with the following mandate given to it:

"The National Judicial Commission, while making appointments to the High Courts and to the Supreme Court, must take into account and see that minimum 49.5% reservation is followed (for OBCs 27%, SCs 15% and STs 7.5%)."

One of the objectives spelt out in the 99^th constitutional amendment creating the National Judicial Appointments Commission (NJAC) was "to broad base the method of appointment of Judges in the Supreme Court and High Courts; enable participation of judiciary, executive and eminent persons and ensures greater transparency, accountability and objectivity in the appointment of the Judges in the Supreme Court and High Courts."  But it did not go beyond and shed any light on the true meaning of the word "objectivity."

However, the very exercise to have a broad-based commission to appoint judges for the higher judiciary was struck down by the Supreme Court (2015). 

Why Claims of Collegium System Being Better than NJAC May Be Incorrect

Jurist Fali S Nariman's claim that the collegium system of appointment is one shade better than the NJAC experiment may not be correct.

The collegium system has never set out its policy statement for the nature of appointment to be made to the higher judiciary, let alone accommodating representation of wider sections of the society (including the SC/STs, OBCs, Minorities and Women).

Therefore, if one has to seek new norms for accommodating plural phase for the higher judiciary, it must start with dismantling the collegium system of appointment and go for a broad-based recruitment procedure by a permanent mechanism for the higher judiciary with a clear constitutional mandate. 

Justice Krishna Iyer has rightly said:

"The whole process is arbitrary and naturally their perfunctory selection has come up for criticism….the appointing authority is not at all subject to transparency, accountability and public responsibility..." (Justice V.R.K.Iyer, 2014) 

Achievement of social justice in matters of appointment and the collegium system of selection will never go hand in hand. The end of elite adhoc system of appointment of judges by judges and a broad-based permanent mechanism with a clear mandate to follow social justice norms is the real solution to solve the problem. 

(Justice K Chandru is a former judge of the Madras High Court. This is an opinion piece and the views expressed are the author's own. The Quint neither endorses them nor is responsible for them.)