The procedure to appoint judges to the Supreme Court and High Courts is listed under Article 124 and Article 217 respectively of the country’s Constitution. Judges of the higher judiciary are appointed through the collegium system and the government has a role only after names have been decided by the collegium.
The collegium system of appointment of judges has come under criticism because the social diversity in higher judiciary has not improved even after many decades of its functioning.
Historical numbers are available in the Karia Munda Committee report, the National Commission to Review the Working of the Constitution report, and the Natchiappan Committee report which confirm the paltry representation of the Scheduled Castes, Scheduled Tribes and Other Backward Communities in the higher judiciary.
- 1. Inequitable representation of backward and minority communities in the higher judiciary is evident from the fact that 79% of all high court judges appointed between 2018 and 2022 were from upper castes.
- 2. There have been only 11 women judges on the Supreme Court since its inception, and no women Chief Justices. Just 83 of the 680 judges in the high courts are women. Only 30% of subordinate judges are female.
- 3. Of the 27 judges of the Supreme Court, only three are women, two from the SC category, and one from Other Backward Classes (OBCs). There is no judge from the ST community.
- 4. There is no provision for reservation in judicial appointments on the basis of gender, caste, and religion.
- 5. There is no official data with regards to representation of various sections of society in judiciary. Hence, the collegium relies on informal sources while considering persons from these communities for appointments. Resultantly, appointments are made from these communities periodically, sometimes after long intervals.
- 6. The government brought into force the Constitution (Ninety-Ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014. NJAC had proposed two eminent persons as its members, including one who shall be nominated from the SC, ST and OBC communities or from the minorities or a woman – in an apparent suggestion that this would remedy the lack of social diversity. The top court struck down the NJAC Act, finding it unconstitutional.
- 7. On the other hand, the collegium system cannot be entirely held responsible. The majority of high court judges are appointed from the pool of lawyers who practise in the high court or Supreme Court. These are mostly the persons who have served as additional solicitor general, advocate general, additional advocate general, or members of the standing council of the central and state governments. Appointments to these positions are made by the governments rather than the judiciary, which means that governments are indirectly responsible for upgrading the profile of advocates, which then increases their chances of being recommended by the collegium for appointment as judges to the high courts and, subsequently, the Supreme Court.
Hence, it is agreed that there is a lack of social diversity in higher judiciary. However, the collegium system cannot be entirely held responsible. There are many factors to consider. It is evident that the first step toward bringing about any systemic change would entail creating a concrete database. It is imperative that the appointments in judiciary reflect the diversity of the country not just for the representation of all sections but for their issues to be understood.