In a previous piece, I had argued in favour of reservations in the Indian Higher Judiciary on the basis of gender, caste, and religion. With considerable merit in the view opposing reservations and the substantial impediments in making reservations a reality, I started looking for a possible ad hoc solution that could be implemented until the democratic process works out a more permanent solution.
Under the constitution of India, judges to the Supreme Court are appointed by the President in consultation with the Chief Justice of India and such other judges of the Supreme Court and the High Court that the President may think are well placed to advise. Judges to the high courts are also appointed by the President after additional consultation with the Governor of the concerned State and the Chief Justice of that high court. The President is advised in both these processes by the Prime Minister and the Council of Ministers.
This process underwent a sea change due of two judgments rendered by the Supreme Court in the ’90s (popularly known as the 2nd and the 3rd Judges cases). By these judgments, the Supreme Court re-wrote the appointment process by giving primacy to the opinion of the Chief Justice of India, and thereby an upper hand to the judiciary in the ‘consultation’ process. Here, the Chief Justice’s opinion meant the opinion of the Chief Justice together with four of his senior-most colleagues. Similarly, for an appointment to the high court, the Chief Justice’s opinion would be that of the Chief Justice and his two senior-most colleagues.
The 2nd and 3rd Judges’ cases firmly established this system, known as the collegium system of appointments. The Parliament’s attempt to change this system by transferring the power to a National Judicial Appointments Commission (was held to be unconstitutional by the Supreme Court in 2015. To make the appointments procedure transparent and participatory, and to avoid inevitable delays due to potential disagreements between the collegium and the Government, memorandums of procedure for appointment to both the Supreme Court and the high courts have been prepared by the Government. However, succeeding Chief Justices and the government have been unable to reach a consensus on the exact procedure.
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The higher judiciary, dominated by Brahmin and upper caste males (see Gadbois and American Bar Association report on Challenges for Dalits in South Asia’s Legal Community), has not seen significant changes in its overall composition. Consequently, historically marginalised communities continue to remain underrepresented. Unfortunately, incremental steps in the form of appointing female judges are not enough. As of March 2 only four out of 32 sitting Supreme Court judges are women and 87 out of 702 sitting high court judges are women with no woman Chief Justice in the country. India is yet to see a non-binary person appointed to the Higher Judiciary. Similar is the fate of judges belonging to religious minorities and the Dalit community.
However, it is difficult to truly determine this problem in the absence of data. Historical numbers are available in the Karia Munda Committee report, the National Commission to Review the Working of the Constitution report, and the Natchiappan Committee report which confirm the paltry representation of the Scheduled Castes, Scheduled Tribes and Other Backward Communities in the higher judiciary.
While it is unclear why the government has never taken steps to collect and maintain this data, the Judiciary has no choice but to rely on informal sources while considering persons from these communities for appointments. Resultantly, appointments are made from these communities periodically, sometimes after long intervals (Justice B.R. Gavai was the first Scheduled Caste judge to be appointed since Chief Justice K.G. Balakrishnan’s appointment in 2000).
Therefore, it is evident that the first step toward bringing about any systemic change would entail creating a concrete database. Presently, the government maintains data only on the basis of gender. The government and the Judiciary can jointly or independently collect and maintain the relevant data regarding the number of judges belonging to underrepresented religions and marginalised castes. This will enable the collegium to make timely and adequate recommendations instead of making token appointments which have only managed to create a temporary buzz but not brought a substantial change in the working of the higher judiciary.
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The second, and perhaps a more permanent solution would be to enact legislation inspired by the Constitutional Reform Act, 2005 put in place by the UK Parliament. While the earlier judicial pronouncements could make it incredibly difficult for the enactment of such legislation to withstand scrutiny, the memorandums of procedure can be amended to incorporate a recommendation that active steps should be taken to make the bench more representative such as giving preference to members of marginalised communities when the retiring member belongs to a marginalised community but not at cost of merit.
Yet another solution lies with the Supreme Court, which can constitute a committee (like the Judicial Diversity Taskforce in the United Kingdom) to devise a comprehensive strategy to promote diversity and inclusivity in the appointment process. In the past, the Supreme Court has constituted the E-Committee and the Mediation and Conciliation Project Committee, which have seen tremendous success in creating a database of over 3000 court complexes in India or promoting the creation of mediation centres in the Supreme Court and the High Courts. The success of the diversity and inclusivity committee will also hinge on the availability of relevant data.
Once the data is made available, the committee could be tasked with maintaining this data and providing periodical reports and updates to the collegium. This will enable the collegium to make more regular recommendations for the appointment of persons from marginalised communities.
The committee could also be charged with creating awareness programs and seminars including for sitting judges to create awareness about inherent subconscious biases and educating them about the role of diversity in the judiciary. A five year strategy could be formulated for making the Higher Judiciary more inclusive and representative at the end of which its impact could be assessed to improve its working.
It is time that the Supreme Court performs a balancing act to make the Higher Judiciary a more representative institution. Even the existing system in its rigidity has room for making some changes to achieve constitutional goals of equality of opportunity and social justice rather than continuing with a system in which token appointments are celebrated as real achievements.
Rhythm Buaria is a law graduate of the Government Law College, Mumbai (’17).
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