Marginalisation in judicial appointments

The representation of different communities in our constitutional courts - or lack thereof - has significant implications for our democracy. I am raising the concern of Muslim representation in the judiciary. It should not be viewed from the prism of my personal identity.

Reminding those in power of the constitutional obligations of the system ought not to be considered as a debate on Muslims versus Hindus or upper castes versus backward castes. My focus at this juncture is confined to directly elevated judges from amongst practicing Muslim lawyers. All indications are that the situation is similar for other minorities like Sikhs, Christians and Dalits. However, I will confine this issue to the representation of Muslims in constitutional courts. I have not considered judges elevated from the district judiciary, as there are other factors at play, like experience and institutional seniority.

Largely, Indian Muslims have aligned with secular parties expecting equal protection of law. However, there is a very strong feeling that generally, they do not get equal protection in the hands of institutional mechanisms; no institution is excepted. The fact is that effectively, Muslims by and large have been ousted from the political and institutional framework of our country. Few are visible in political institutions, but they are not free to speak and raise crucial issues concerning Muslims because of organisational discipline. Those raising core issues are termed either as communal or anti-Hindu.

Diversity, based on religion, caste and social background, is the hard reality of our country. Our Constitution has accommodated minorities and the Supreme Court has acknowledged them, not only in cases on affirmative action, but also in judges’ appointment cases. In this context, it becomes incumbent upon self-governing institutions to follow these principles. Specifically, this article talks about the process of appointment of judges to constitutional courts through the Collegium system - purportedly a non-political and neutral institutional mechanism.

In the last session of parliament, a member tried to raise one facet of exclusion and discrimination - failure to appoint judges from different communities, including religious minorities. The member sought to convey that the government had to ensure that everybody is represented in the right proportion. I do not find any response of the government on this issue. If pressed again, they will say, and correctly so, that this appointment process is initiated from the judiciary itself and the government, for that purpose, has little role to play.

Regularly, practicing lawyers are appointed as judges in the High Courts; sometimes they are directly appointed to the Supreme Court. It is a group of senior judges who initiate this process by shortlisting the names of lawyers who are ultimately recommended for to be appointed as judges in the High Courts. The initiation and recommendation of the appointment process is the prerogative of the senior judges of the High Courts and the Supreme Court. The government’s role in this process is limited and comes later. No one stops the senior judges from considering diversity while recommending the names.

Now let us see how Muslims are placed in different High Courts based on data available on the official websites of different High Courts.

In 14 High Courts, out of 232 lawyers appointed as judges, there is no Muslim judge. In the High Courts of Delhi and Calcutta, there are 32 and 39 judges appointed directly from Bar respectively; none of them are Muslim. Similarly, in Gujarat, there are 19; 24 in Madhya Pradesh; 22 in Andhra Pradesh; 43 in Punjab and Haryana; 12 in Orissa; 9 each in Chhattisgarh, Jharkhand and Himachal Pradesh; and 7 in Uttarakhand who are directly appointed from lawyers’ pool. None of these High Courts have any serving Muslim judge appointed from the Bar.

The High Courts of Patna (with 31 judges elevated from the Bar), Telangana (22), Rajasthan (26), Gauhati (15) each have one Muslim judge. Even the Jammu & Kashmir and Ladakh High Court has only 2 out of 6 such judges.

The Allahabad High Court has 4 Muslim judges out of 77 directly appointed from the Bar. The Bombay High Court has 3 out of 59; Kerala has 3 out of 25; Madras has 3 out of 43; and Karnataka has 3 out of 40. At what age they have been appointed in comparison to their fellow judges is also a relevant factor.

In the Supreme Court of India, where presently the working strength is 34 judges, there is only 1 Muslim judge. It has not had a Sikh judge in a long time.

There are 3 major judgements of the Supreme Court relating to appointment and transfer of Judges. I will quote few lines from the initial two judgments.

In the First Judges’ Case in 1981, PN Bhagwati J, stated that the judiciary "cannot remain content to act merely as an umpire but it must be functionally involved in the goal of socio-economic justice".

In the Second Judges Case in 1993, in his concurring opinion, S Ratnavel Pandian J, noting in the context of the OBCs, STs, SCs and women, opined, "...the right of entry into superior judicial office is not the exclusive prerogative of any particular coterie or privileged class or group of people...the inadequate representation of various sections of people is neither illusory nor imaginary but is the actual and real existing fact."

In the majority view, JS Verma J stated that proper representation of all sections of the people from all parts of the country was a factor material for determining the suitability of a judicial appointee.

The judges making recommendations know that many names of those coming from minority communities are stopped or delayed at the government level. The option is to recommend more names from those sections rather than not recommending them or recommending only few to be blocked by the government. There is no paucity of eminent and well-regarded Muslim lawyers practicing in the constitutional courts, so there is no shortage of a talent pool to choose from, if the will exists.

Today, we see that every issue concerning our social and political life is the subject matter of judicial scrutiny. Judges' background, preferred philosophies and subjective opinions are reflected in their reasoning. Due to this reason, diversity in the appointment process is necessary. This is different from demanding reservation in the higher judiciary.

Dr BR Ambedkar, while apprehending as to how our democracy will function, expressed that the system will have to hold fast to constitutional methods of achieving social and economic objectives. He also said that the working of the Constitution does not depend upon the nature of the Constitution, but upon the nature of persons called upon to work it. Both situations are adversely related. For example, today, we have a constitutional method to appoint judges that is working to the exclusion of a few communities. It becomes more serious when we find that the substantive part of the mechanism, unlike many other appointments, is the choice of the highest-ranking of judges in our constitutional courts. 

MR Shamshad is a Senior Advocate practicing before the Supreme Court of India.