Millions are waiting for a foot in the door: A case for a representative Judiciary in India

“A little boy and his father are in front of the lion’s cage at the zoo. Suddenly the little boy comes too close to the cage and the lion is almost on the boy.

A man standing by with a swift movement grabs the boy and saves him.

A journalist happens to be among the crowd, so he decides to write an article about it.

Among other questions he asks the man, “What party do you belong to?”

“I am a Nazi,” replies the man.

The next day the newspaper carries the following headline : “A dirty Nazi snatches the lunch of a hungry African immigrant.

That’s the way how prejudices function.”

- Joking Around (Tao Insights Into Life), Osho (p.177-178)

Why assume that judges are not human too and by that logic – a product of their own prejudices? For example – one’s priorities in life will be governed by one’s experiences, framework, education, culture, upbringing, lifestyle amongst others.

Now, these priorities will show up at one’s workplace, and the judiciary is no exception. If we analyse the Indian Supreme Court judges from this human lens, one can appreciate why at different points of time in the Supreme Court’s history, the perception of the highest court of law has remarkable differed.

To cite just one example, no one in the legal profession today would disagree that the perception of the Supreme Court towards Public Interest Litigations (PIL) has changed considerably (although for extraneous reasons), compared to the times of Justice VR Krishna Iyer and Justice PN Bhagwati who gave rise to it. Now, when we collectively question why some of the obvious issues haven't gained the highest court’s attention - the Electoral Bonds issue, the EVM issue, the Article 370 issue; or has only gained scant attention for the longest time – the plight of migrant workers during the first wave of COVID, prosecution of intellectuals and several habeas corpus petitions - isn’t it pertinent to turn our eye, beyond the ‘merit’ of our judges, to the ‘diversity’ represented on the Bench?

Simply put – if the majority of our judges who make it to the top court, are Hindus, upper caste, men with the same sexual orientation and similarly bodied – why do we assume that their level of empathy, compassion, prioritisation of issues, reasoning, ethics, sensibilities will not reflect in their choosing the issues and also deciding upon them.

For context, an analysis of all the Chief Justices of the Supreme Court of India (CJIs) till date reveals that we are yet to have a differently-abled judge, a female judge, a Christian or Buddhist judge or a member of the LGBTQ community occupy the top judicial office.

But why should we value representation for its own sake? Hasn’t a non-gay Bench delivered the judgment in the Navtej Johar case which decriminalized homosexuality? And did having a female judge on the Bench make the decision or views on the issue of women’s entry into Sabarimala temple, any more predictable? Justice Indu Malhotra infact, being the only female on the Bench in the Sabarimala case, wrote a strong dissenting opinion against women’s entry into the temple. So why do we need gay judges, female judges, differently abled judges, judges with different religious and castes backgrounds in the Supreme Court?

Here’s why.

A constitutional democracy like ours rests upon the voices of the people being heard and counted, and the judiciary is a part of such a constitutional democracy. Democracy has never claimed to be perfect, but its success lies in the semblance of equality that it espouses and maintains. Why else did our Constitution makers choose the system of ‘one person, one vote’ and give universal adult franchise to all, without any discrimination? They could have easily chosen only those with proven ‘merit’, based on educational or awareness levels to vote. But they didn’t. Why else, do we have a political system where people belonging to different states, and by implication different cultures, have fair representation in the two Houses of the Parliament, based on the size and population of the State? Why not just let the most ‘meritorious’ people govern us, instead of allocating specific number of seats in Lok Sabha and Rajya Sabha to all states, based on their sizes?

Similarly, why have a reservation policy at all? Why not just let the upper classes rule us all? Because we understand that ‘merit’ and ‘diversity’ are not at loggerheads. Because we understand deeply that people with different backgrounds and experiences bring a unique perspective, or a ‘different voice’ which is relevant for equality, and also for effective governance that takes ‘all’ into consideration, rather than a few. Democracy after all focuses on ‘we, the people’ and not just a ‘few of us the people’.

Should the judiciary be an exception, though? Should merit trump the value of representation in the highest court of the land? Firstly, do we really believe that the judges of the Supreme Court are absolute best and the most meritorious that we have in the country? This is not a rhetorical question (at least not intended to be so), but one that needs to be answered at both an individual and collective level.

Secondly, whose yardstick are we applying in deciding the most meritorious? Lets not forget that the system of appointment of judges by judges themselves (popularly known as the Collegium system) was not part of the Constitution itself. It is the Supreme Court that in 1993 in the Supreme Court Advocates-On-Record Association v. Union of India case, decided to come up with this system and we continue to live with it.

More importantly, don't all the reasons that make us value representation in electoral politics also apply to the judiciary? For instance, don’t we want our highest judiciary to reflect the thoughts of common people or show neutrality, unbiased views, and be free from fear or favouritism? Don’t we want our Supreme Court judges to have a perception of fairness, impartiality, and be devoid of stereotypes? And don’t we want, above all, for people to have faith and confidence in the judiciary, which will arise if people can see that their judges are also ‘one of their own’?

This is backed by research. Studies suggest that personal experiences of the judges do have a bearing on their decision making.And this is why representativeness in judiciary matters.

For instance, the argument about bringing more women into the judiciary revolves around two theories. First, that their ‘gendered sensibility’ helps make law more representative of the variety of human experiences. Second, as Carol Gilligan suggests, women judges tend to have ‘ethics of care’, as opposed to ‘ethics of justice’, thereby being more concerned with preserving social relationships than individual rights.

Therefore having more female judges, isn’t just good for it’s own sake, but because it will herald a different type of ‘judging’, one which may be closer to and reflect the experiences of about 48 percent of India’s population in India, which comprises of women.

Let’s look at some hard numbers to understand exactly where do we stand in terms of representativeness in Judiciary.

Justice Sharad Arvind Bobde, who recently retired as the 47^th Chief Justice of India, was also the 41^st Hindu, 47^th male and 47^th able-bodied CJI to hold office.

Speaking on equal gender representation (a type of representation which still gets more attention albeit academically), there have only been 8 female judges in the Supreme Court till date, with only two of them elevated directly from the Bar of the Supreme Court. India is yet to have a female Chief Justice. In comparison, 27.6% of judges in the lower judiciary are female and only 10% of the High Court judges are women. Currently, there is only one woman judge in the Indian Supreme Court, out of 31.

Speaking of Scheduled Castes (SC) and Scheduled Tribes (ST), currently only Justice BR Gavai represents the former community in the apex court. Chief Justice KG Balakrishnan is the only CJI who belongs to SCs, amongst the 48 Chief Justices. We are yet to have representation from the STs amongst the highest judiciary and also for Chief Justiceship. As per a Ministry of Law and Justice report, Other Backward Classes (OBCs) constitute 12% of the lower judiciary, SCs comprise less than 14% and STs have about 12% representation in the subordinate judiciary.

Further, out of 48 Chief Justices of India, 42 have been Hindu, 4 have been Muslim, 1 has been Zoroastrian and 1 has been Sikh. In a land of religious diversity, this may look a little surprising.

What’s also interesting to note is that judges who have a legacy (who hail from families with a legal background) dominate the judiciary. But let's expand on this another day.

The trump argument in the case for representation in the highest judiciary should be the inherent value in representation itself. Why should 2.1% of the differently abled in India (about 21,906,769 people), 48% of women, 2.5 million gays (as of 2012), 2.3% of Christians (about 24,080,016 people), 0.8% of Buddhists (about 7,955,207 people), amongst million others not have a foot in the door? Why should we justify the need for representation? Why not turn the table to ask why not?

After all, law is a political concept. And every judge brings their politics to it – some overtly and others covertly. Perhaps it is also time for law students to begin dissecting the political and ideological leanings of the judges, the way it is done in American law schools. Being a ‘conservative’ or ‘liberal’ judge reflects their politics too.

So, representation in the Indian judiciary, at all levels, and of all types, matters. So that no Saurabh Kirpal, should ‘perceive’ that his sexual orientation is the reason why a decision on his elevation has not been taken for more than three years by the Supreme Court Collegium, after his name was proposed for elevation by the then Chief Justice of the Delhi High Court. Although in the latest development, former CJI Bobde did ask for the government’s stand on Kirpal's elevation, this malaise of lack of representation in the Indian judiciary, especially in the Supreme Court, runs far too deep.

Now the United Kingdom, who we have drawn upon for our legal system, is not too good either on this front. But more importantly, the solution is not too difficult, provided there is the will. The Supreme Court itself, in the present Collegium system, can factor in representation while elevating judges by amending the inhouse rules. And if an amended National Judicial Commission Bill is presented, the government can ensure that representation is given due weightage in the selection criteria. So if there are two equally meritorious candidates, representativeness should be factored in for their appointment. Both the Supreme Court and the Government can solve the problem, if only they are convinced that there is one.

After all, it is rather elitist to claim that some didn’t make it because they weren’t meritorious enough, when they are systematically kept from getting a foot in the door. If the Supreme Court is going to be a sea of grey hair, let there at least be different hairstyles.

[Data compiling information on all Chief Justices of the Supreme Court of India]