The tug of war between the Narendra Modi government and the Supreme Court over the appointment of judges in the higher judiciary began with a series of remarks. Union Law Minister Kiren Rijiju called the collegium system alien to the Indian Constitution, which miffed the Supreme Court.
Then, President Droupadi Murmu, at a function to celebrate the Constitution Day in the Supreme Court, chastised judges over the judiciary’s sluggish approach toward undertrials. At the same event, the law minister remarked that “in the matter of appointment of judges, the government of India is committed to social diversity and has been requesting honourable chief justices of high courts to provide for the same while sending proposals for the appointment of judges.”
Clearly, it appears that diversity in the appointment of judges is an issue for the government. And it assumes significance because, as columnist Dilip Mandal showed, the collegium led by former CJI N.V. Ramana didn’t address the diversity issue and most of the judges appointed to the high courts during his tenure were ‘upper caste Hindus’.
However, the collegium isn’t solely responsible. The Union government is also to be blamed for the lack of diversity among the judges of the higher judiciary.
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Representation of SCs/STs in judiciary
India’s higher judiciary severely lacks diversity, especially when it comes to women, SCs, STs, and OBC. Of the 27 judges of the Supreme Court, only three are women, two from the SC category, and one from Other Backward Classes (OBCs). There is no judge from the ST community. Justice H.K. Sema remains the only judge from the ST community to have been appointed to the Supreme Court since Independence.
This shows that since the publication of the Report of Parliamentary Committee (Kariya Munda Committee) in 2000, which examined the issue of representation of SCs and STs in the high courts and Supreme Court, no significant progress has been made.
It is an established principle that diversity increases the responsiveness of public institutions. The lack of representation of SC, ST, OBC, and women in the judiciary is seen as one of the reasons for the judiciary’s insensitivity towards these communities, partly visible in the increase of undertrials belonging to these marginalized communities.
So, who is responsible for the lack of their representation in the higher judiciary? The government seems to have developed a standard response of passing the ball in the court of the higher judiciary. Since the judges are expected to speak only through their judgement, the burden of a lack of diversity has completely fallen on them. However, without a comprehensive understanding of the demand and supply of people eligible for the appointment of judges, this burden cannot be easily fixed.
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Demand & supply of talent pool for judges
The Supreme Court judges are mostly drawn from the high court and a few from the bar. The latter are mostly advocates who have held positions as solicitor general and additional solicitor generals. But most judges in the Supreme Court come from high courts.
In high courts, judges are appointed from the district courts and the advocates of the high courts and the Supreme Court. Judges in the district or subordinate judiciary are appointed through direct competition, so there is a possibility of entry for people from SCs, STs, women, and OBCs.
A substantial number of people from these communities have been entering the district or subordinate courts. However, I have been told by a number of such judges that when their turn comes for elevation to the high court, frivolous complaints get filed against them. By the time such complaints are resolved, these district judges get retired.
Due to the high court’s strict oversight of district judges, such judges remain hesitant of coming out in public. They even say that they cannot file complaints against such incidents because of involvement of the higher judiciary, since it is the final arbitrator. The Supreme Court and high courts appear to have ignored these issues, which is supposedly creating hurdles in the elevation of SC/ST district judges to the high courts.
The majority of high court judges are appointed from the pool of lawyers who practise in the high court or Supreme Court. Upon reading the profiles of judges, it becomes clear that they have served as additional solicitor general, advocate general, additional advocate general, or members of the standing council of the central and state governments. Such posts are collectively termed as law officers. Appointments to these positions are made by the governments rather than the judiciary, which means that governments are indirectly responsible for upgrading the profile of advocates, which then increases their chances of being recommended by the collegium for appointment as judges to the high courts and, subsequently, the Supreme Court.
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Status of diversity in law officers
The Attorney General is the highest law officer in the country. As per Article 76 of the Constitution, the attorney general would have the first audience in any court. Since the implementation of the Constitution, 14 advocates have been appointed as attorney general and 23 advocates as solicitor general. Not one of the 37 appointments were women, SCs, or STs.
Currently, there are 21 additional solicitors general, and only two of them are women. None belong to the SC/ST category. The Supreme Court also assigns the position of senior advocate to lawyers, but only one lawyer from the SC category has been designated as senior advocate.
Judges are mostly drawn from the ranks of advocates, but their status as law officers raises their profile. For the appointment of such officers, it’s the Union government that is mainly responsible. So, it would be erroneous to argue that for the low representation of SC, ST, and women judges in India’s higher judiciary, the collegium system alone is responsible. The government needs to look within.
Arvind Kumar (@arvind_kumar__), PhD in Politics, Royal Holloway, University of London, and Associate Fellow of Higher Education Academy (AFHEA), United Kingdom. Views are personal.
(Edited by Tarannum Khan)