How Inclusive Is India’s Judiciary? Government Data Paints A Shocking Picture

Gauri Kumari is a Dalit Lawyer. The only one in her family. She decided to become a lawyer after being inspired by Baba Saheb. While her journey has been marred by constant struggle and discrimination basis her caste, it was a case of gangrape against a mother-daughter that really shook her to the bone. An incident that she couldn’t shake off of her mind. She decided to become a lawyer to bring justice to the voiceless, the invisible who battled countless barriers. But as she told Mojo Story, “Nyaypalika mein Dalit pratinidhva Baba Saheb ne samaanta ka adhikar toh diya lekin, manuvadi soch use pratinidhva karne ya aane nahin deti”.

Recently, Mojo Story accessed and analysed the government’s official data, and it revealed some shocking truths. Out of 569 Judges appointed in the High Courts since 2018, only 17 Judges belong to the Scheduled Castes category and 9 judges are from the Scheduled Tribes.

In other words, less than 3% of India’s High Court Judges are Dalit and less than 2% are Adivasis or tribals.

Why is there such stark under-representation of Scheduled Castes in our Judiciary? India’s courts are the guardians of our constitutional rights; upholding the spirit of equality, diversity, and inclusiveness rests on their shoulders. However, how much of this spirit is actually reflected in the composition of the Judiciary?

Even as the number since 2018 seems low, before that the situation was even more shocking. A quick search on the internet will bring you to the fact that the appointment of the very first Dalit Judge to the Supreme Court of India was in 1980 – Justice K Varadarajan. This is a good 33 years after India attained freedom, had adopted her own Constitution, governance, and rule of law. After 1980, however, and until 2010, there was always only one Scheduled Caste judge sitting on the Bench in this Court.

Between 2010 to 2019, no Scheduled Caste judge was appointed. So when in 2019, Justice Bhushan Ramkrishna Gavai was appointed, the collegium recommendation took note of this fact and detailed that “His recommendation, in no way, is to be misconstrued to mean that three senior-most Judges from Bombay High Court (two of whom are serving as Chief Justices) are less suitable than Mr. Justice Gavai. On his appointment, the Supreme Court Bench will have a Judge belonging to Scheduled Caste category after about a decade.”

Per a paper published in the Economic & Political Weekly by Alok Prasanna Kumar, “Given that Article 217(2) of the Constitution prescribes that High Court judges may either be practising lawyers (from “the Bar”) or judges of the subordinate judiciary (from “the services”), one would expect to see perhaps an even distribution of judges from the bar and the services. However, that is far from the case.” The paper further details, that, “The numbers for the High yourts and the Supreme Court are incongruous since there is already a system of reservations in the subordinate judiciary in the states.”

So we ask, are the courts in any position to champion pluralism if the men and women who can change the course of the country with one strike of the gavel don’t themselves reflect the change they seek?

“The lack of diversity in the higher judiciary is just reflected in these numbers. Unless there is a more transparent process of appointment and the pool of people who are considered for appointment expanded, these numbers are not going to change. There needs to be a conscious effort to change the process by which names are considered and recommended”, Dr Harish Narasappa, Senior Advocate; Founder, Daksh.

How judges are appointed in India and how they should be appointed has led to an unprecedented collision between the ruling Modi government and the judiciary.

The Law Minister has openly taunted the judges for an absence of transparency in how transfers and appointments are done.

While there are not many takers for the argument that giving the government a greater say in judicial appointments would lead to a more effective system, the criticism that the Collegium is a clubby, insider’s cabal has tended to stick, given the absence of effective diversity of representation on the Bench.

Despite a raging controversy around what some believe is an essentially opaque Collegium system, fresh recommendations of names to India’s High Courts are still glaringly non-inclusive in their social make up. As of 16th March, 2023, High Court Collegiums have forwarded 124 names as recommendations for elevation to the Bench as judges. Of these, only 4 are Dalit and 3 are from the ST community.

Constitutional expert Faizan Mustafa told Mojo Story that, “The Dalit perspective of life and discrimination cannot be understood with same intensity by anyone else. Even educated and elite Dalits experience such things on a daily basis. The logic is same as collegium had said about the judges coming from sexual minorities. In USA, black accused have higher chances of getting death penalty in comparison to white accused. Social diversity must be reflected on benches. Similarly female and minorities life experiences are different. All our laws have been made keeping in mind just the male experience.”

While questions have also been raised about how few lawyers from socially and economically marginalised groups finally cross the threshold of formal designation as Senior Advocates, the government informed Parliament that no such stratification was available for lawyers.

However, one of the bigger questions that remained in our minds as we broached this topic was as to where merit and seniority factor in to this entire debate. Mojo Story then reached out to Justice Deepak Gupta, a recently retired Judge of the Supreme Court of India, who answered that question duly, stating that “Dalits are definitely underrepresented in the High Courts. However, having said that, the District Judiciary seems to have adequate representation owing to the Constitutional provisions, as well as reservations. The representation in High Court, however, suffers from two main points; one is that they are rather few lawyers belonging to the Scheduled Castes and Tribes with the level of work required to be considered for HC judgeship appointment. Second reason being that many judges are not comfortable appointing those belonging to these communities as there is caste bias in the system, and that fact cannot be denied. However, whenever possible, we have provided advantage to judges from the Scheduled Castes. We have to also keep in mind the balance of merit in such scenarios, and the change we aim to bring cannot be brought overnight, because then we may have to compromise between merit and seniority.”

This piece sheds light on something that while being present in complete view of the nation, still presents us with shocking revelations. Given that the office of a judge, especially in the highest echelons of the judiciary, is one which inherently demands an empathetic understanding of injustices which must be righted, it is absolutely necessary to embrace remedies that make our judiciary more inclusive, encompassing the broadest spectrum of viewpoints possible. The struggle ahead remains potently visible, with much scope for improvement on the long way to go.