While much ink has recently been spilled on gender biases when it comes to appointing judges, there is a need to highlight disproportionate representation at the Supreme Court on the lines of caste and religion. Here is an analysis from this perspective.
As per Article 124 of the Constitution, any citizen of India below 65 years age who has been:
a judge of one High Court or more (continuously), for at least five years, or
an advocate there, for at least ten years, or
a distinguished jurist, in the opinion of the President, is eligible to be recommended for appointment, a judge of the Supreme Court.
The criteria to be appointed as a Supreme Court judge are citizenship, age and work experience in law.
Regarding the essential requirements of experience in law, citizenship and age there are three interesting facts:
Earlier, officers from the Indian Civil Services (ICS), active till 1947, could also be appointed as Supreme Court judges. At least 6 judges were officers of ICS – Justices SK Das, KN Wanchoo, KC Das Gupta, R Dayal, V Ramaswami and V Bhargava. Justice AK Mukherjea had also served as an ICS officer, but had resigned and become a barrister. Interestingly, there was no requirement for them to be even trained in law. Justice SK Das (who served from April 30, 1956 to September 3, 1963) was a member of the ICS and had no degree in law. Justice Wanchoo in fact served as Chief Justice of India from 1967-68.
At least 9 Supreme Court judges were not born in today’s India. Justices JL Kapur, SM Sikri and ID Dua were born in modern day Pakistan. Justice Jaswant Singh was born in today’s Pakistan Occupied Kashmir (POK). Justices AN Grover, AP Sen and MP Thakkar were born in Burma. Justices AK Sarkar and KC Das Gupta were born in today’s Bangladesh.
Using another Constitutional provision, a few Supreme Court judges conducted proceedings even after retirement.
Thus, these constitutional requirements for appointing judges have been broadly followed with a few additional factors.
The Constitution is silent on any other preferred eligibility criteria which is to be used while appointing a judge amongst the group of people who fulfil the essential criteria. There is a big pool of citizens who fulfil these essential criteria. A question thus arises: what is the process and what are the ‘undeclared factors’ taken into consideration while picking a candidate from amongst this big lot?
For the purposes of this piece, let me bifurcate these ‘undeclared factors’ into ‘known’ and ‘known but hidden’ factors.
The known undeclared factors include criteria such as age, seniority, merit, integrity and good health etc. The ‘known but hidden’ criteria include caste, class, family background, representation from a legal/judicial dynasty, political connections, religion, regional representation etc. Gender was not even a factor till recently.
In this piece, our focus is solely on two amongst these ‘known but hidden’ facts - Caste and Religion - and the intersection between them.
Till date, 247 judges have been appointed to the Supreme Court. The maximum strength of judges initially was 8, which has now been stretched to 34. As on the date of penning this piece, 27 amongst these 247 judges are currently sitting.
Traditionally and conventionally, Brahmins have dominated judgeship at the highest level. Let us see the data since independence to substantiate this. When we adopted the Constitution and attained independence, Justice HJ Kania became the CJI and 5 other Federal Court judges became judges of the Supreme Court. These were – Justices MP Sastri, S Fazl Ali, MC Mahajan, BK Mukherjea and SR Das. As the Federal Court always had a ‘Muslim seat’, this requirement was met by appointing Justice Fazl Ali. So, we had all upper-caste Hindus and 1 Muslim judge. Out of these, two were Brahmins (Sastri and Mukherjea JJ). So 2 out of the initial 6 judges were Brahmins i.e. 33.33%. The first appointment after this was Justice N Chandrasekhara Aiyar, who took the number to 3. So 3 out of 7 meant 42.85% judges were Brahmins.
What this showed was that a fixed undeclared percentage quota was reserved for Brahmins at the Supreme Court. This undeclared quota for Brahmins has been maintained till date.
With the untimely death of Justice Kania, the entire Supreme Court threatened to resign. Justice Patanjali Sastri, who took over as CJI, appointed Justice TL Venkatarama Ayyar as a Supreme Court judge, thus maintaining the power equilibrium and representation of Brahmins. The impact has been that out of 47 Chief Justices of India till date, at least 13 have been Brahmins (Justices Sastri, BK Mukherjea, PB Gajendragadkar, KN Wanchoo, AN Ray, YV Chandrachud, RS Pathak, ES Venkataramaiah, Sabyasachi Mukherjee, Ranganath Misra, MN Venkatachaliah, Dipak Misra and SA Bobde). This constitutes roughly 27.6% of the CJIs we have had so far. By the time the 50th CJI is appointed, we will have had at least 15 Brahmin CJIs. The percentage of Brahmin Chief Justices will be around 30% then.
From 1950-1970, the maximum strength of the Supreme Court was 14 judges after an amendment. This era saw a tremendous increase in the number of Brahmin judges. The appointees were – Justice B Jagannadhadas, TL Venkatarama Ayyar, PB Gajendragadkar, KN Wanchoo, N Rajagopala Ayyangar, JR Mudholkar, V Ramaswami, JM Shelat, V Bhargava, CA Vaidialingam and AN Ray.
From 1971-1989, the number saw a further increase. During this period, Justices DG Palekar, SN Dwivedi, AK Mukherjea, YV Chandrachud, VR Krishna Iyer, PK Goswami, VD Tulzapurkar, DA Desai, RS Pathak, ES Venkataramaiah, RB Misra, Sabyasachi Mukherjee, RN Misra, GL Oza, LM Sharma, MN Venkatachaliah, S Ranganathan and DN Ojha were appointed. They were all Brahmins. Of course, other upper caste candidates were also appointed, but no single caste had such high representation.
In 1988, there were 17 judges at the Supreme Court and 9 of them were Brahmins (Justices RS Pathak, ES Venkataramaiah, S Mukharji, RN Misra, GL Oza, LM Sharma, MNR Venkatachaliah, S Ranganathan and DN Ojha). This gave the Supreme Court more than 50% Brahmin representation.
Needless to say, this has happened on multiple occasions. It is only after this, that it was perhaps realized that Brahmins are over-represented and the next few appointees after Justice DN Ojha were non-Brahmins. The reason behind this was perhaps also that the Law Ministers in 1988 and 1989 were B Shankaranand and P Shiv Shankar, who belonged to the Scheduled Caste (SC) and Other Backward Classes (OBC) community respectively. Despite this, by the end of 1989, 7 out of 25 judges were Brahmins (28%).
Please note that till 1980, there was no judge from the OBC or SC community. While Brahmins maintained the highest representation for judgeship at the apex level, many castes still await representation. For example, the Gurjar community has had only Justice BS Chauhan as a judge of the apex court till date. It is important to note that the number of offers made and the zone of consideration to be appointed as a judge of the Supreme Court to sitting Brahmin judges at High Courts was perhaps even higher. Many would have declined due to various reasons.
Coming to Scheduled Castes, the first appointment from the SC community as a judge of the Supreme Court came only in 1980 (Justice A Vardarajan). This was 30 years after achieving independence! Two months after he retired, Justice BC Ray of the same community ‘replaced’ him. Perhaps this is when the undeclared representation of one judge from the SC community started. Justice KG Balakrishnan became the first Chief Justice of India from the SC community. Justice BR Gavai is set to be a future CJI from the SC community. However, the application of this 1 seat representation has been highly irregular.
Similarly, till 1980, there was no representation from OBC. The first judge appointed from the OBC community was Justice SR Pandian. The second was Justice KN Saikia (Ahom community). Justices KS Hegde (1967) and AN Alagiriswami (1972) were members of castes which were later designated as OBCs.
Let us now examine the position of Brahmin judges from 2004. I am taking the sample of 2004-2014 and from 2014 onwards till date. Why so? It is not arcane knowledge that political inclinations at the Centre are important for elevation. Eg - Justice MN Chandurkar, Chief Justice of the Madras High Court, was stopped from coming to the Supreme Court by Prime Minister Indira Gandhi merely because he had attended the funeral of (and eulogized) RSS leader MS Golwalkar, who had been a friend of his father. He was thus found ideologically unsustainable.
The argument I am trying to make here is that irrespective of the political ruling establishment, the average 30-40% quota for Brahmins at the Supreme Court has remained constant.
Amongst the current 27 judges, at least the following are Brahmins: Justices UU Lalit, DY Chandrachud, SK Kaul, Indira Banerjee and V Ramasubramanian. Two amongst these are set to be Chief Justices in 2022. Three judges are Kayasthas – Justices Ashok Bhushan, Navin Sinha and Krishna Murari. At least 5 judges are Baniyas/Vaishyas – Justices MR Shah, Hemant Gupta, Vineet Saran, Ajay Rastogi and Dinesh Maheshwari.
The following judges have been appointed since May 2014, when the current ruling establishment was elected:
*Please excuse me for not knowing castes of all judges.
An analysis of this would show that a total of 35 Supreme Court judges have been appointed since May 2014. 8 of these judges have superannuated. 27 are currently serving. CJI NV Ramana will be the only serving judge after April 23, 2021 who has not been appointed during the tenure of the current ruling establishment. Out of these 35 judges, there are 3 women judges, the highest so far. 1 Muslim, 1 Christian, 1 Parsi and 1 Scheduled Caste judge have been appointed.
Now compare this to at least 9 appointees who belong to the Brahmin caste out of this 35. This constitutes around 26% of the appointees. 7 judges belong to Baniya/Vaishya caste from the Hindu religion constituting 20% of judges. 3 are Kayasthas constituting 8.5% judges. A simple calculation makes it abundantly clear that over 50% of the judges are upper caste Hindus.
Let us compare this data with the previous ruling establishment of UPA from 2004-2014.
*Please excuse me for not knowing castes of all judges.
Out of 52 appointees in this period, at least 16 judges were Brahmin Hindus, which is 30.76% of the appointees. 5 judges were Baniya/Vaishya, 3 were Kayasthas and at least 2 were Thakur/Rajputs. This roughly takes us again to minimum 50% undeclared quota for upper caste Hindus. It is interesting to note that the percentage of appointees from the Baniya/Vaishya caste has increased during the current ruling establishment.
As on date, the Collegium of 5 judges has 3 judges belonging to the Brahmin caste. Even after subsequent retirements, the Collegium will have a decent number of Brahmin judges in the future.
Compare this data with the percentage population of Brahmins in the country and you’ll find why I have mentioned this. There has been no judge from the Scheduled Tribes (ST) community in the Supreme Court till date. Moreover, there is no official record maintained regarding the number of judges belonging to the SC and ST communities.
Let us now see the religious angle to appointments. At least one seat was reserved for a Muslim judge in an undeclared manner at the Federal Court. After Justice Fazl Ali, the next appointee was Justice Ghulam Hasan.
In 1958, the Supreme Court had two Muslim judges - Justice M Hidayatullah (1958-70) and Justice Syed Jaffer Imam (1955-64), who was already a sitting judge. In 1968, Justice Hidayatullah (1968-70) was appointed as the first Muslim Chief Justice of the Supreme Court.
After Justice Hidayatullah’s retirement, the Muslim seat was filled by Justice MH Beg (1971-78). Later, Justice Beg (1977-78) superseded Justice HR Khanna and became the second Muslim Chief Justice of India. Justice AM Ahmadi (1988-97) served on the Court for nine years. In 1994, he became the third Muslim Chief Justice of India.
During Justice AM Ahmadi’s tenure as CJI, Justice M Fathima Beevi (1989-92), the only ever Muslim woman Supreme Court judge, was appointed to the Court. In 2005, Justice Altamas Kabir (2005-13) was appointed. In 2012, Justice Kabir (2012-13) became the fourth Muslim Chief Justice of India. In the same year, 2 Muslim judges came to be appointed to the Supreme Court – Justices MY Eqbal and FMI Kalifulla. Presently, Justice S Abdul Nazeer is the only sitting Muslim judge.
Statistically speaking, in the 1950s, there was one Muslim appointee out of first 6 appointed Supreme Court judges, which is approximately 16.67%. In 1978, there were two Muslims out of 16 (13%). In 1986, there was one Muslim out of 14. In 2009, there were 2 Muslims out of 26, or 8 per cent. Since 2019, there has been one Muslim out of 34, which is approximately 3%.
Of the 219 retired and 27 present judges who have served in the Supreme Court, 18 or 6.75% have been Muslims.
Justices RS Sarkaria, Kuldip Singh, HS Bedi and JS Khehar have been the only 4 appointees from the Sikh community. All of these are upper caste Sikhs. Marginalised sections amongst religions still await representation.
From the Zoroastrian Community, Justices DP Madon, S.H.Kapadia, Bharucha, S.N.Varaiva & R.F.Nariman have been appointed.
The number of Christian judges similarly has been comparatively less. Justices Vivian Bose, KK Mathew, TK Thommen, KT Thomas, Vikramjit Sen, Cyriac Joseph, Kurian Joseph, Banumathi (practising Christian) and KM Joseph (currently sitting) are perhaps the only Christian judges who made it to the Supreme Court.
The figures above reflect that traditionally weaker sections of society are still institutionally marginalised. There is an absence of a clear pattern in decisions by the Collegium, either by commission or omission. Even amongst religions, persons of upper class/caste have been appointed. The downtrodden do not have proper representation at the apex court. There cannot be a denial of other ‘known but hidden’ factors such as political connections, coming from legal/judicial dynasties etc. as well.
In 2014, Justice Anil R Dave, then a sitting judge of the Supreme Court, said that had he been a dictator, he would have made the Gita and the Mahabharata compulsory in schools. In 2019, a judge of the Kerala High Court made controversial remarks about Brahmins and their virtues. In the course of his speech, he also urged the Brahmin community to agitate against caste-based reservation.
The only exception so far is Justice Chinnappa Reddy, who belonged to the Reddy caste but refused to be classified under any religion or any community. Ironically, Chinnappa Reddy was appointed to the Supreme Court in July 1978 as a Christian replacement for Justice KK Mathew, who had retired in January 1976. It is further amusing to note that after Justice Reddy retired, he was replaced by Justice TK Thommen, a Christian.
It is not the case that no attempts have been made to improve the system. This is about that the fact that our system largely hasn’t changed at the steady pace it ought to have. Attempts to make a rough regional balance have been successful, gender biases are being done away with, and proportionate representation on the lines of caste and religion may perhaps be taken into consideration soon. But what we must also take into consideration is that while managing one representation, the other should be kept in mind too.
It is not arcane knowledge that Justice BV Nagarathna of the Karnataka High Court is being considered for appointment as a Supreme Court judge. She may become the first woman Chief Justice of India. But while doing so, it should also be noted that she is the daughter of retired CJI ES Venkataramaiah, who was also a Brahmin.
There is a lot to write on the subject. There are various other factors that weigh in. For example, is it only a coincidence that in the past 15 years, all Supreme Court judges who have Rajasthan as their parent High Court belong to the Baniya/Vaishya/Marwari community alone? (Justices Dalveer Bhandari, RM Lodha, GS Singhvi, Dinesh Maheshwari and Ajay Rastogi).
Let us ponder collectively on this. Till then, fingers crossed.
The Author is an Advocate on Record at the Supreme Court
Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the views of Bar & Bench.