Recently two male judges have been appointed to the Supreme Court of India on recommendation of the collegium. The appointments created controversy because of the appointment one meritorious junior judge, Justice Khanna, despite 32 alternative candidates that included Chief Justices of High Courts. Proposals for the appointment of two more male judges, who are also junior, much like Justice Khanna, are also currently under review. Meritocracy as the sole criterion for judicial appointments in India has led to the avoidance of discussion about diversity and inclusivity in the judiciary.
With the focus on the debate regarding judicial impropriety and the executive’s complicity, the diversity of the Supreme Court has been a casualty. Scholars, academics and lawyers have lamented the absence of representation on the bench of marginalised communities. The representation of women and other marginalised communities, such as Scheduled Castes, is woefully inadequate. Despite there being more than a hundred million members of the indigenous tribal population no judge from a Scheduled Tribe has yet been appointed to the Supreme Court during its 70 year history. Out of 25 judicial appointments to the Supreme Court since 2014, only three have been women, with an additional two judges appointed in 2018. There is currently no representation of any Scheduled Castes or Scheduled Tribes on the Court, despite these communities making up around 25% of the Indian population. The Supreme Court, more often than not, adjudicates on matters which affect marginalised populations. Recent decisions on matters affecting these communities has shaken the faith in the Court of these communities. The Supreme Court is not representative of the diversity present in India even though it, like other state institutions, should actually be representative of the diversity in Indian society. It has been accepted by some that higher judiciary operates like ‘Old Boys Club’ given the high levels of representation of just a few families on High Court and Supreme Court benches.
Balancing diversity and merit: Lessons from the UK and US
The United Kingdom (UK) publicly advertises judicial vacancies on the Supreme Court, including vacancies for President, Deputy President and Justices. The applications are very detailed and look at the complete profile of a judge – their outlook, scholarly achievements and judicial work. What is particularly interesting, and relevant in this case, is the Supreme Court’s Equal Merit Provision policy. The policy makes provision for circumstances in which there are two candidates with equal merit – both meeting all the criteria in the published advertisement. In such circumstances, the policy provides that priority must be given to the candidate belonging to the societal group that is ‘least well represented among the judges of the Court'. The purpose of the policy is to bring balance, with respect to race and gender, in judicial appointments for a judiciary primarily comprised of white men who either attended Oxford or Cambridge for their legal education.
The UK therefore consciously countered sexual and educational homogeneity entrenched in judicial appointment through the policy. This is an unambiguous acknowledgement of skewed representation and the impact it can have. The change since the implementation of the policy is noticeable. The glass ceiling has been broken. The UK presently has Baroness Brenda Marjorie Hale as President of the Supreme Court (appointed in September 2017). In 2009 she became the first woman to be appointed to the Supreme Court and served as Deputy President of the court from 2013 until her appointment as President in 2017. As Judge President, she believes in the promotion of judges from ethnic minorities, persons who have led a ‘less privileged life’. On what the optimal number of female judges on the bench would be, she cites Justice Ruth Bader Ginsberg, who when asked the same question responded: ‘when there are nine.’ For Hale, women making up a quarter of the UK Supreme Court bench should be fine, but the ‘ideal balance’ is 60/40 for either gender, something the Court still has to achieve. On the US Supreme Court as well, Justices have overwhelmingly been male, white and Harvard educated, in these circumstances Justice Ginsburg stands out as an exception along with Elena Kagan and Sonia Sotomayor. Sonia Sotomayor is ‘only the third woman and first Hispanic to sit on the highest court in the land’ when Barack Obama appointed her in 2009. A year later a fourth women, Elena Kagan, was appointed, making one third of the Supreme Court justices women, for the first time in its 230 year history.
Caste, constitution and social capital
Abhinav Chandrachud, in his book Informal Constitution: Unwritten Criteria in Selecting Judges for the Supreme Court of India, chronicles changes on the bench with respect to religious diversity. In India, at least one Christian judge has been appointed to the Supreme Court at all times, except in the 1960s. As in India, a lack of religious diversity is also evident on the US Supreme Court. There, however, considerations of religious diversity are not an unwritten criterion, as in India, as the US Constitution bars consideration of religion for the purposes of appointment to public office. The Indian Supreme Court has diversified (possibly as a result) more, in terms of religious diversity, than US Supreme Court which is yet to have justices on the bench from religious backgrounds other than Christian and Jewish. Unlike in India, an appointment to the US Supreme Court is considerate of political expediency. Such an appointment is also regarded as a sign of complete integration into American public life.
Arundhati Roy has commented on the caste system within Hindu tradition in India, and on its legitimacy and importance in public life, in her essay 'The Doctor and the Saint' in B.R. Ambedkar’s Annihilation of Caste: The Annotated Critical Edition. In that piece, she documents the tussle between Mahatma Gandhi and Dr B.R. Ambedkar, a scholar and economist from a Scheduled Caste who is credited with the creation of the Indian Constitution. She further notes:
According to the Centre for the Study of Developing Societies study, 47 per cent of all Supreme Court Chief Justices between 1950 and 2000 were Brahmins. During the same period, 40 per cent of the Associate Justices in the High Courts and lower courts were Brahmin.
This is a case of disproportionate representation, as the Brahmin comprise only 5% of the Indian population.
Amartya Sen in Identity and Violence: The Illusion of Destiny explores the concept of social capital – how identifying with others in a social community, and a resultant sense of belonging, can be seen as a resource just like financial capital. This understanding is important, but it should be supplemented by further recognition that such a sense of identity can exclude many people at the same time as it embraces others warmly. This fuller understanding of community identity might explain the hegemonic, monolithic, casteist composition of the Supreme Court of India.
The Supreme Court of India is a ‘People's Court', meaning that the Indian Constitution established it and that it derives (or should) derive its legitimacy from the people, much like legislature and executive. Supreme Court appointments, through changes to the facially neutral assessment criteria, must lead to more inclusiveness and diversity. It is high time the Indian Supreme Court addresses its democratic deficit and its diversity consciously, through judicial policy as well as practice.
Surendra Kumar has an LL.M. from SOAS University of London where he was a Chevening Scholar.
Suggested Citation: Surendra Kumar, ‘Diversity Died (Again): The Indian Supreme Court and its Appointments’ IACL-AIDC Blog (10 May 2019) https://blog-iacl-aidc.org/2019-posts/2019/5/10/diversity-died-again-the-indian-supreme-court-and-its-appointments