The Indian judiciary’s — lower and higher — record in terms of representation of minorities has historically been abysmal and deplorable. Since independence, the Supreme Court has had only four (of 43, or 9.3 percent) Muslim chief justices, the last being Justice Altamas Kabir who retired in 2012, and 10 (of 154, or 6.5 percent) judges.
Before Justice Kabir, AM Ahmadi served as the CJI between 1994 and 1997. And before Justice Ahmadi, Mirza Hameedullah Beg (January 1977 to February 1978) and Mohammad Hidayatullah (February 1968 to December 1970) were appointed CJI.
Why the judiciary at all levels lacks in religious diversity is not clear. Are the causes mainly on the supply side, meaning are there simply not enough senior lawyers from religious minorities? Do they not aspire to a career in the judiciary? Or do they underrate their chances of entering it? Or are the causes mainly on the demand side? In other words, do the recruitment and selection mechanisms place religious minority candidates at a disadvantage?
Of the 28 Supreme Court judges, only one is a Christian (Justice Kurian Joseph) and another a Sikh (Justice J S Khehar).
The representation of women judges in the apex court is as poor as that of religious minorities. The gender balance is overwhelmingly in favour of male judges with Justice R Bhanumati being the sole representative of the fairer sex.
Clearly, there is a striking lack of diversity in India’s higher judiciary, and that includes our high courts. While Muslims constitute nearly 15 percent of the Indian population there are only 26 judges from the minority community out of 601 sitting judges across 24 high courts.
Serious Under-Representation
The higher judiciary has stuck to its guns in arguing that the Supreme Court’s collegium system is, and should be, the only institutional arrangement in selecting and appointing judges to the apex and higher courts. And yet, a serious under-representation of religious minorities in the Supreme Court reflects that the collegium has either not been sensitive towards the matter or has simply bypassed it in its cloudy deliberations to select and appoint judges.
This is not to impute that the “learned judges” on the collegium discriminate on grounds of religion but it does leave hanging the question whether the higher judiciary suffers from wilful religious blindness. Plaintiffs and respondents who enter Indian courtrooms often face a predictable presence on the bench: a Hindu male.
A report in a national daily yesterday discloses that the Supreme Court has no representation of Muslim judges after
the retirement of Justice MY Eqbal and Justice Fakkir Mohamed Ibrahim
Kalifulla, who were elevated to the bench in 2012. The
report goes on to add that this is “the first time in 11 years and only the
second in nearly three decades, that the SC has been without a Muslim judge.”
Positive Discrimination
The collegium claims that its decisions in appointing judges is based on merit, but merit is an “empty vessel” that needs careful filling.
The argument that candidates for elevation to the Supreme Court and the high courts should be appointed only on merit, could often simply mean selecting “people like us”.
For citizens to have confidence in those making judgements — often impinging on life and death — upon them, the judges should be reflective of a multi-ethnic, multi-religious community. Besides, different viewpoints make for better decisions and stronger laws.
Encouraging Diversity
Today, besides integrity, the judiciary faces the classic problem with merit: More often than not Hindu male judges with a certain expertise as lawyers and who have served as judges of high courts can rise to the Supreme Court comparatively easily but one needs to be an exceptional religious minority or a woman to make an impact.
It goes without saying that greater diversity and encouraging and promoting the best from a wider pool of backgrounds would mean an overall better quality of the judiciary and a much-improved justice delivery system.
When the judiciary does not reflect a broadly representative cross-section of Indian society, the public perception would be that there is an implicit bias against religious minorities. While reservation in the judiciary may generate controversy, it nonetheless raises the question: What would it take for such a change to be made or other attempts at dealing with the lack of diversity to fully emerge?
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