There is no gainsaying that 70 years after its inception, the Supreme Court of India primarily remains an old boys club. Further, the old boys club has and continues to comprise mainly of Brahmins and other forward castes. Here, I argue a case for reservations in the high courts and the Supreme Court for women, non-binary gender persons, Scheduled Castes, Scheduled Tribes and the Bahujan community with the aid of the limited data available.
Out of the 246 Supreme Court judges, retired and sitting, there have only been eight women judges. Of the eight women judges, five have been appointed in the last decade – during which as many as 25 male judges were appointed. As of September 17, this year, out of 1,113 judges in the high courts and the Supreme Court, there were only 80 women judges. There is no official record maintained regarding the number of judges belonging to the Scheduled Castes and the Scheduled Tribes.
George F. Gadbois’ book, Judges of the Supreme Court of India concluded on the basis of empirical data that between 1950-1989, 92.2% of the Supreme Court comprised male Brahmins and other forward castes. Not much has changed since then. A testimony to this is Chief Justice K.G. Balakrishnan being the first and only Chief Justice of India belonging to the Scheduled Caste out of 47 Chief Justices of India. It is also known that Justice B.R. Gavai, who was appointed to the Supreme Court last year became the first judge belonging to the Scheduled Caste to be appointed in almost a decade.
In the absence of official data, it is not possible to say the number of Brahmin and forward caste persons appointed to the Supreme Court and high courts, but it is safe to assume that they outnumbered the number of judges from Scheduled Castes and Scheduled Tribes.
Neither the constitution nor any other statute provide reservation for any category of persons in the higher judiciary. The constitution only provides for the minimum qualifications for appointment of Supreme Court judges under Article 124 and appointment of high court judges under Article 217.
To understand the case for and against reservation in the higher judiciary, one must try understanding the criteria for being considered and appointed to the Supreme Court and the High Court. Once again useful reference may be made to Gadbois’s book, which contains a qualitative and quantitative analysis of the criteria for appointment of Supreme Court judges from 1950-1989. Broadly, the criteria for appointment continues to remain the same which is: i) age and seniority; ii) merit and integrity; iii) good health; iv) ideological leanings; v) caste; vi) family background; vii) religion; and viii) regional representation. Only recently, gender has become a criterion for appointment. It is in light of these that one must argue for or against reservations in the higher judiciary.
The primary argument made against reservations in the higher judiciary is that it is the guardian of fundamental rights of the citizen against executive and legislative action. Therefore, at all times, its independence and efficiency ought to be secured which may be substantially hampered by reservations. By and large, merit is to be considered as the sole criterion in determining the appointment to higher judiciary. The Law Commission of India in its 14th, 79th and 18th report maintained that merit is the only criterion to be considered for appointment. In fact, the 14th report was extremely critical of appointments made on communal, political, and regional considerations, which it felt had resulted in the public and the subordinate judiciary losing confidence in the higher judiciary.
It is also argued that the higher judiciary cannot be equated to a service body like the executive or legislative bodies like the parliament and state assemblies, which discharge different functions and members of which can be dismissed or re-elected. On the other hand, persons appointed to the higher judiciary are secured under the constitution which makes their removal from office practically impossible. Further, it is feared that having persons from reserved categories may directly lead to loss of independence and impartiality. It is finally argued that reservations will lower the prestige of the constitutional office.
While some of these arguments have merit, there is considerable force in the argument for reservations. Despite seven decades of affirmative action, the position of marginalised communities has not improved to the expected levels. To wait for persons from these communities to find their way naturally into a system entrenched in patriarchy and casteism is to leave too much to chance and passage of time. Given that marginalised communities are not adequately represented in the higher judiciary, it follows that their prospects are automatically lowered. Again, persons from marginalised communities are less likely to come from well-established families which is another stumbling block in their appointment.
The Supreme Court’s word is the last word on law which governs millions of persons from all walks of life. Therefore, it is essential that judges are drawn from the widest spectrum of the society to bear upon the law of the land. A more representative judiciary brings new perspective to pressing issues of rights of marginalised communities. A more representative judiciary would also be a balanced judiciary which is likely to promote a frank, open and wider discussion on matters of constitutional importance, especially those concerning the Scheduled Castes, Scheduled Tribes, women, and non-binary individuals.
A judge from these sections of the society is more likely to understand the specific problems faced by their communities. Having female and trans colleagues will lead to sensitisation among the male judges. Another argument in favour of reservations in the higher judiciary is younger members of these communities will be encouraged to reach the highest echelons of the profession. All of this can be achieved by a well-drafted law which would not compromise on independence and quality, which are the absolute essentials of any judiciary.
Rhythm Buaria is an advocate practicing before courts and tribunals in Delhi.
Featured image credit:Reuters