The marginalisation of backward classes in judicial appointments

In my last write-up, I focused on the representation of Muslims in the constitutional courts in India. This time, I turn to a much more discussed issue of representation of the backward classes in the constitutional courts. 

More than 3 decades after the Constitution of India came into force, the representation of Scheduled Castes (SC), Scheduled Tribes (ST) and Other Backward Classes (OBC) in the higher judiciary continues to remain astonishingly low.

In 1983, the then law Minister told Parliament that of the nearly 400 High Court judges, 6 were SCs and none were from STs. The process of appointment of judges and the resultant number of appointees from these communities did not see any significant change till 1993, when the Second Judges’ Case was decided. 

A 9-judge bench of the Supreme Court sat to examine what should be the appropriate procedure to appoint judges in constitutional courts. 5 judges wrote their respective opinions. Representation of different castes, communities and religions was one of the aspects through which this constitutional issue was examined. One of the judges set out a tabular chart to highlight their representation based on the data provided by the government in Parliament.

As per the number set out in that chart, as on March 31, 1993, 543 judges were working in different High Courts, out of which only 12 (2.21%) were found to be from the SC community and 42 (7.73%) were from the OBC community. A shocking fact was that many big High Courts had no representation from the SC and OBC communities. The High Courts of Punjab & Haryana (working with 29 judges at that time), Madhya Pradesh (26), Calcutta (27), Delhi (25), Rajasthan (22), Patna (33) and Orissa (13) had no representation from these two communities. Andhra (with 24) had no SC judge, but 3 OBC. Out of total 543, only 7 ST Judges (1.29%) were working.

Prior to this Second Judges’ case, the procedure of appointment of judges was not the same as we have it today. This judgment gave formal shape to the Collegium system, which prevails today. In the verdict, a lot of discussion about merit and ensuring that all sections of people are duly represented took place. The majority opinion was written by Justice JS Verma, who considered one of the factors to be “proper representation of all sections of people from all parts of the country”. Legitimate expectation of suitability in addition to merit of the judges were also considered as relevant factors. Ensuring representation of all sections of people was one of the legitimate expectations created through this judgment.

Within few years of the Second Judges case, the 13th Report of the Committee on the Welfare of Scheduled Castes and Scheduled Tribes for 2000–2001 recorded that “the committee were surprised to note that out of 481 High Court judges only 15 were from scheduled castes and 5 from scheduled tribes in position as on 01.05.1998 and none was in the judgeship of the Supreme Court in spite of the fact that some suitable, eligible and well qualified SC/ST judges were available in the consideration zone”. The Committee emphasised that, in view of changed circumstances, the government should consider providing reservation for Scheduled Castes and Scheduled Tribes in the matter of appointments of judges to the High Courts and the Supreme Court, if necessary by amending the Constitution. I must clarify that there is no statutory reservation of any community including SC or ST in High Courts or the Supreme Court in the appointment of judges and neither is such reservation required.

Now let us see the data after the Collegium system has functioned for about 30 years. In March 2025, in response to a question raised by a Member of Parliament regarding the representation of SCs, STs, OBCs, women and minorities in the higher judiciary, the Law Minister stated that the responsibility for initiating proposals for the appointment of judges to the Supreme Court rests with the Chief Justice of India, while the responsibility for initiating proposals for appointment to the High Courts’ rests with the Chief Justice of the concerned High Court. In the same reply, the Minister stated that out of 715 High Court judges appointed since 2018 (till March 2025), 22 (3.08%) belonged to the SC category, 16 (2.24%) belonged to the ST category, 89 (12.45%) belonged to the OBC category, and 37 (5.17%) belonged to minority communities. This appears to be the consolidated data provided in respect of appointments to the High Courts.

Based on data for November 2022 to November 2024, out of a total 170 judges having been appointed by the Central government, it is found that 94 judges were appointed from lawyers' pool (out of 170). Out of the 94 directly appointed judges, 5 (5.32%) were SCs, 2 (2.13%) STs, 4 (4.26%) Muslims, 4 (4.26%) Sikhs and 1 (1.06%) Parsis. In this 94, total OBC were 10 (10.64%).

The numbers showing representation of SCs, STs, OBC pre-1993 (pre-Collegium) is not much different from the post-1993 period. There is no doubt that there are enough qualified and deserving candidates in these categories to ensure adequate representation. The Bar and the Bench both know that all the candidates of the general category are also not exemplary/equally competent. Hence, there should not be a grievance that the deserving candidates in these categories are not available.

Post-1993 data of High Court judges directly appointed from the Bar does not suggest that the functioning of Collegium has upheld the spirit of the Second Judges’ judgment, where one of the important issues was to ensure proper representation of different classes, castes and religions. The government has already stated that it is not their responsibility; the action of the Collegium must not reflect that they are not accountable to the legitimate expectation of the nation at large. It is not difficult that out of every 10 direct appointments, the Collegium ensures the representations of at least 1 SC, 1 or 2 OBC,1 Muslim, 1 out of Sikh or Christians. Representation of women could also be guaranteed.  

I am not suggesting that replacing the Collegium and embarking on yet another experiment would, by itself, cure the problems. In our system, whenever the problems are pointed out in their functioning, the instinctive response is often to replace the existing system altogether. The Collegium needs to introspect on its own functioning and make reforms to the selection and appointment process so that it is fair, representative and transparent.

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

The author acknowledges the assistance of Advocate ZR Karimi.