Law Minister Arjun Ram Meghwal reported to the Lok Sabha that 75% of High Court judges appointed since 2018 were from upper castes, with less than 12% from Other Backward Castes (OBC).
Asaduddin Owaisi, the Lok Sabha MP from Hyderabad and the chief of All India Majlis-e-Ittehadul Muslimeen (AIMIM), raised a question in the Parliament about the social diversity and social justice in the appointment of judges to the Supreme Court and High Courts. He asked whether it is a fact that 79% of judges appointed in all High Courts were from upper castes during the last five years indicating an inequitable representation of backward and minority communities1.
Only 2.6% judges from sections other than upper castes since 2018
He also asked whether it is true that only 2.6% of the total 537 judges since 2018 were from sections other than upper castes, and if the Government has urged the Chief Justice of India (CJI) and Chief Justices of High Courts to address the issue of social diversity and social justice.
Lastly, he asked whether the situation has worsened after the collegium system has been introduced in the appointment of judges.
The collegium system is a system where existing judges appoint judges to the nation’s constitutional courts, which has its genesis in, and continued basis resting on, three of its own judgments made by Supreme Court judges which are collectively known as the Three Judges Cases. The system is also known as the “Judges-selecting-Judges” system.
The Collegium System: A Cause for Concern?
Owaisi went on to question the impact of the collegium system on social diversity and justice within the judiciary. The collegium system, colloquially known as the “Judges-selecting-Judges” system, is where existing judges appoint judges to the nation’s constitutional courts.
Law Ministry’s reply: No reservation for any caste or class
The Law Ministry acknowledged the lack of social diversity in the higher judiciary despite the collegium system of judge appointments, which has been in place for three decades. The Ministry confirmed that the Constitution does not stipulate reservations for any caste or class of people in judicial appointments, but the government has requested Chief Justices of High Courts to consider candidates from underrepresented backgrounds, including SC/ST/OBC, minorities, and women.
The Ministry of Law and Justice replied that as per information provided by the recommendees, out of 604 High Court Judges appointed since 2018, 458 Judges belong to the General Category, 18 Judges belong to the SC category, 09 belong to the ST category, 72 Judges belong to the OBC category, 34 Judges belong to Minority and for the remaining 13 Judges there is no information available.
The Law Ministry’s Response: No Reservation Mandated
The Ministry of Law and Justice, in response, mentioned that the appointment of Judges of the Supreme Court and High Courts falls under Articles 124, 217, and 224 of the Constitution of India. These provisions do not stipulate any reservation for any caste or class of persons. However, they added, the Government has urged Chief Justices of High Courts to consider suitable candidates from Scheduled Castes, Scheduled Tribes, Other Backward Classes, Minorities, and Women, to promote social diversity.
“However, the Government has been requesting the Chief Justices of High Courts that while sending proposals for the appointment of Judges, due consideration be given to suitable candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, Minorities and Women to ensure social diversity in the appointment of Judges in High Courts,” the reply added.
The reply clarified that based on the Memorandum of Procedure for the appointment of Judges in the Supreme Court and High Courts, the Government appoints only those persons who are recommended by the Supreme Court Collegium.
Disparity in Representation: A Question of Justice and Democracy
The skewed ratio of judges from upper castes (75%) compared to those from Other Backward Classes (OBC) (less than 12%) and other underrepresented groups raises fundamental questions about social justice, equality, and the robustness of our democratic system. It sends an alarming message to the very individuals the judiciary is meant to serve and protect – that justice may not be truly blind to societal hierarchies and biases.
Appointment Statistics: A Closer Look
Based on the information provided by the recommendees, the Ministry detailed that out of the 604 High Court Judges appointed since 2018:
- 458 belong to the General Category
- 18 belong to the SC category
- 9 belong to the ST category
- 72 belong to the OBC category
- 34 belong to Minority categories
- For the remaining 13 judges, there is no information available
| Category | Number of Judges Appointed |
|---|---|
| General Category | 458 |
| SC Category | 18 |
| ST Category | 9 |
| OBC Category | 72 |
| Minority | 34 |
| No Information Available | 13 |
Table 1: High Court Judge Appointments Since 2018
Collegium System: Independence vs. Diversity
The collegium system of judge appointments, instituted with the intention of maintaining judicial independence, has unfortunately fallen short in fostering social diversity within the higher judiciary. Despite three decades of its existence, we still see an upper caste-dominated bench, reflecting an apparent paradox between preserving judicial independence and ensuring judicial diversity.
A Step in the Right Direction, But Not Enough
The government’s request to Chief Justices of High Courts to consider candidates from SC/ST/OBC, minorities, and women while making appointments is a step in the right direction, but it’s not enough. What we need is a proactive, deliberate strategy to address this issue, rather than a mere suggestion.
The All India Judicial Service: An Opportunity Missed?
It’s also concerning that there’s no consensus on the proposal to establish an All India Judicial Service (AIJS) for district judge appointments, which could potentially bring more diversity into the judiciary. It’s high time we prioritize this issue and foster an environment that promotes inclusivity and representation at all levels of the judiciary.
A Balancing Act
While the Law Ministry’s response highlights the structural constraints within the Constitution, it acknowledges the need for more diverse representation in the judiciary. It is a question of striking a balance between upholding the law’s tenets and promoting social justice. It will be interesting to see how this issue unfolds and what measures will be taken to address it in the future.
Our judicial system should mirror the diverse tapestry of our society and uphold the principles of social justice. Only then can it fully inspire trust and confidence in its ability to dispense justice without prejudice or favor.
(Rusen Kumar is associated with India CSR)
