By Agniva Chakrabarti

Introduction

The Indian Judiciary is a unique institution of homogenizing tendencies. The appointments process that is central to the Judiciary is responsible for making it an elite center of power where only a certain group of people are appointed.[1]

Through this article, I will look into the empirical numbers and establish how the Judiciary primarily works on the lines of an “Old Boys’ Club”.[2] The essential qualities and the objective criteria the collegiums have in mind while selecting a Judge is also something I will deal with. Ultimately, I will establish how the exclusion of Judges to some extent from the appointment process might lead to better representation of the populace on the Benches and towards the end I will try to present how that aim can be achieved by creating a new mechanism for appointments.

 

An insight into the Appointment process

The process of appointing Judges has been a bone of contention for many years.[3] The closed door pattern of appointing peers has made the citizenry unaware of the process of the objective criteria taken into consideration while selecting a Judge. Unlike an appointment process in the echelons of the Indian bureaucracy which is followed on a basis of certain criteria and there exists a sense of objective marking. No such exercise is followed by the Judiciary.

The empirical studies conducted into the nature of appointments clearly lays down a trend imminent in the process with the judges generally appointing people who are similar to themselves i.e. based on their religion[4], caste[5], religion[6] and place of litigating practice.[7]  The trends in homogeneity have varied in different scales and criteria being taken into consideration for appointment. The homogeneous trend in formative years of the court was focused more on selecting judges who had been called to bar in Britain and had pursued their legal education in the Inns of London and came back to the country and thus went on joining the bar in presidency cities instead of Tier II or Tier III cities. Later the homogeneous trend that emeged was valuing a person’s social markers of religion, caste and sectarian ideals while deciding his appointment.  But broadly a pattern is present in a specific timeline with certain criteria being privileged over other during appointments.

 A study during the 1950 – 1967 found that the 32 judges appointed to SC had primarily from the cities of Calcutta, Bombay and Madras the old presidency cities[8] and having studied in England. The biases pre-eminent in a country emerging out of a long standing Colonial rule lead the appointments on the basis of an Anglo phonic and class bias[9].

In addition to this the bench has always had three to four non Hindu members as an informal rule from Chief Justice RS Pathak’s time.[10] The inclusion of an informal representational rule of thumb does have his positives but the trend which has been introduced is similar to the narrative set by the regional distribution of where a person’s religious affiliation becomes the leading factor instead of merit.

 

Geographical Representation: An essential consideration?

The predominance of certain regions over others in their representation in Supreme Court is present which has led to the informal creation of a reservation system. The informal reservation system has been the point of contention in the Supreme Court from its inception. But what has changed in the landscape of appointments is the metric of indicators which decided the appointment process.

Towards the beginning in 1950s the dominating states were Madras, Bengal, Bombay, Bihar, Punjab, Uttar Pradesh and Madhya Pradesh.[11] The country then was divided into 14 states but throughout the ‘50s only eight states found their way through the court. [12]Then, in 1960s the formulation of the beginning of an attempt towards an inclusive Judiciary found judges from Kerala, Andhra Pradesh and Mysore coming into the mainstream.[13] But still, ten states didn’t find any judges from their province making their way into the court. During Chief Justice A.N. Ray’s time the informal judges reservation regime formalised with him spearheading the appointment of a number of judges on the basis of the predecessor’s parent High Court and selecting the candidate from that High Court.[14] This has been the rule more or less in subsequent appointments till now.[15]

 The Bombay and the Allahabad HC have had the largest share of judges in Supreme Court at any time with the distribution being two to three seats from each of these courts. The attempt at a regional distribution bias has also led to a trend of appointing judges depending on the judgments they deliver. The judgments delivered by judges being an informal metric to test the merit of a judge is quite arbitrary since the judgments delivered depend on the cases being filed before the court. The Allahabad HC has always been the center stage of cases with political undertones whereas the Delhi HC ha always been at the forefront of most of the Human Rights violation cases which strike a chord with the public more than the roster of cases present in other High Courts who don’t deal with these media frenzy issues on a regular basis. The primary consideration that emerges out of this trend is the factoring of optics and media visibility which leads to his subsequent elevation and preference over an equally meritorious judge.

The concoction of this artificial representative model although followed across the world in USA, UK, Germany, Netherlands and even the International Court of Justice where two judges of the same nationality can’t be member at the same time is a blatant attack on the primordial basis of appointing a judge i.e. merit.[16] This “Merit/ Diversity” paradox a coined by Leny E. De Groot[17] reduces the conundrum and interprets the biases towards maintain the regional diversity happens at the cost of merit.

The Indian Judiciary is not a people’s representative body, it is a body meant for upholding the rights of the citizens and interpreting the law[18]. Hence, the concept of maintaining the diversity on geographical parameters has no basis. The fact that even if every state is represented at the Court a bench in which the adjudication happens wouldn’t be able to constitute a bench where every state is represented. So the crux of the appointment in light of consideration geographical consideration has more of symbolic representation than practicality.

Crafting a diversity on the basis of social indicators

The appointment process of Judges in the courts also has a strong bias of accommodating people in the court on the basis of their caste[19], religion and gender. [20]

Tracing its beginning in late 50s there has been uniformity in the Muslim representation in Court with the numbers touching 16 percent.[21] But the number has dropped to around 4 per cent in recent times[22]. Similarly the Christian representation although less in Court has been more or less proportional with their representation in Indian populace i.e. 2.3 per cent.  The Sikh representation has always been between 0 and 2 per cent.[23]

The representation of backward classes in the Supreme Court has been historically low. Conscious efforts made during Justice Y.V. Chandrachud’s tenure to appoint judges from backward classes has not made a significant impact on the composition of the Judiciary with the representation from backward classes still remaining around 20 per cent.[24]

The representation of women in the Supreme Court has always been low despite the evolving role of informal representation based on a person’s social indicators.[25] The first three decades had no female judge in the Supreme Court.[26] But the subsequent appointments of MS Fateema Beevi in 1989, Sujata Manohar in 1994 and Ruma Pal in 2004 show a positive trend towards inclusivity.

The problem with the person’s social indicators getting more importance over his/ her merit is two-fold.

First, the person who is selected on the basis of the informal quota is not always a crusader for the rights of the specific sect of people. The informal reservation regime in the Supreme court was introduced with the aim of accommodating diverse group into the foray of the higher judiciary. So that the rights of these vulnerable and marginalised group be addressed, But those goals were not necessarily fulfilled in every situation.For instance, Justice Indu Malhotra in her scathing dissent in Sabarimala decision contrary to much held opinion was against women’s entry into the temple. Even Clarence Thomas of US Supreme Court delivered judgments which were against the African American population in important matters of civil rights legislation. So, in terms of protecting the diversity in order to represent the views of that particular community may backfire in more instances than other.

Another important fallacy of this system is the fact that it privileges the person’s social capital over merit leading to people occupying important judicial offices. The Supreme Court is not a peoples’ representative body that is elected according to whims and fancies of the populace.It is abody which has been bestowed with the sacred duty of upholding the rights of people. Thus focusing majorly on the social indicators and capital of aperson and necessarily compromising with the merit with which a person delivers judgment will lead to neither the goals of social balance  nor evolution of jurisprudence ripe in intellect being fulfilled.

The way forward to a fairer appointment process

Through the course of this blog-post, I have highlighted the fallacy in the artificially created rule of informal reservation in the appointments process and how this has in one way or the other through a different process legitimised the selection of judges on the basis of biases. The primary stronghold which judges have in the appointments process has led to them choosing their successors on the lines of their premonitions.

The way forward remains constructing a corpus composed of people from legislature and striking down the predominance of judges in the appointment process. However, the fact remains the appointment process of the judges needs to be not on the social indicators or the geographical considerations but purely on merit. A judicial bench discusses matters of law and rights of individuals in light of pre-existing statutes and covenants and should not be susceptible to scoring sociological brownie points on the basis of a concocted symbolic representational model.

Agniva Chakrabarti is a 2nd Year B.A. LLB. (Hons.) Student at The West Bengal National University of Juridical Sciences (NUJS), Kolkata.

[1] Hindustan Times, 50% HC judges related to senior judicial members, June 15, 2015, available at https://www.hindustantimes.com/india/50-hc-judges-related-to-senior-judicial-members-report/story-S8RP2Ir9cEuIN4NewFnvML.html / (Last Visited at September 1, 2019).

[2] Quartz India, A super elite club of lawyers dominates India’s justice system. How long will it rule?, November 6, 2017, available at https://qz.com/india/1119667/a-super-elite-club-of-senior-advocates-dominates-indias-courts-how-long-will-it-rule/ ( Last Visited at September 1, 2019).

[3] Abhinav Chandrachud, An Empirical Study of the Supreme Court’s Composition, 46 ECONOMIC AND POLITICAL WEEKLY 1 (January 1, 2011).

[4] Ibid.

[5] The Caravan, Former Supreme Court judges discuss the influence of caste in judicial appointments, June 14, 2018, available at  https://caravanmagazine.in/law/supreme-court-judges-influence-caste-judicial-appointments-chandrachud-extract (Last Visited at October 26, 2019).

[6] Abhinav Chandrachud, An Empirical Study of the Supreme Court’s Composition, 46 ECONOMIC AND POLITICAL WEEKLY 1 (January 1, 2011)

[7] Ibid.

[8]  Ibid.

[9] George H. Gadbois Jr., Indian Judicial behaviour, 5 ECONOMIC AND POLITICAL WEEKLY 3/5 (Jan, 1970).

[10] Ibid.

[11] ABHINAV CHANDRACHUD, THE INFORMAL CONSTITUTION 245 (2014).

[12] Abhinav Chandrachud, Regional representation on the Supreme Court, 46 ECONOMIC AND POLITICAL WEEKLY 20 (May 14, 2011).

[13] Ibid

[14] Ibid.

[15] Ibid.

[16] Leny E. De Groot-Van Leeuwen, Merit Selection and Diversity in the Dutch Judiciary, in APPOINTING JUDGES IN AN AGE OF JUDICIAL POWER: CRITICAL PERSPECTIVES FROM AROUND THE WORLD 145, 145 (Kate Malleson & Peter H. Russell eds., 2006).

[17] Ibid.

[18] The Caravan, Former Supreme Court judges discuss the influence of caste in judicial appointments, June 14, 2018, available at  https://caravanmagazine.in/law/supreme-court-judges-influence-caste-judicial-appointments-chandrachud-extract (Last Visited at October 26, 2019).

[19] The Caravan, Former Supreme Court judges discuss the influence of caste in judicial appointments, June 14, 2018, available at  https://caravanmagazine.in/law/supreme-court-judges-influence-caste-judicial-appointments-chandrachud-extract (Last Visited at October 26, 2019).

[20] Abhinav Chandrachud, An Empirical Study of the Supreme Court’s Composition, 46 ECONOMIC AND POLITICAL WEEKLY 1 (January 1, 2011)

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24] Abhinav Chandrachud, An Empirical Study of the Supreme Court’s Composition, 46 ECONOMIC AND POLITICAL WEEKLY 1 (January 1, 2011).

[25] Ibid.

[26]  ABHINAV CHANDRACHUD, THE INFORMAL CONSTITUTION 257 (2014).