Hardik Kuldeep*
The Judiciary is difficult to hold accountable as it enjoys broad independence and lacks transparency. It appoints Judges in the Higher Judiciary through the Collegium system, which is not beholden to any accountability mechanism. The Scheduled Classes find it uniquely challenging to succeed in sectors with high nepotistic tendencies, as they have been historically underrepresented in these fields. This piece goes over the reasons for such underrepresentation and the issues it causes to society. It also provides different mechanisms that can be put in place to better hold the Judiciary accountable and ensure representation.
Introduction
As a lawyer you have the freedom to pursue your heart’s desire. But as a judge of this Court, I am a servant of the law and the Constitution. I have to follow the position and the law laid down
Justice DY Chandrachud
Justice Chandrachud recently gave this reply to advocate Mathews J. Nedumpara regarding a petition filed on the abolition of the collegium system and the process of designating senior advocates.
President Droupadi Murmu inaugurated a statue of Dr B.R. Ambedkar at the Supreme Court complex and made remarks on the need for different measures to be taken to ensure equal representation of India’s diversity in the judiciary. The president added, “More varied representation of India’s unique diversity on Bench and Bar definitely helps serve the cause of justice better. One way to hasten this diversification process can be the creation of a system in which judges can be recruited from varied backgrounds through a process which is merit-based, competitive and transparent.” Similar concerns have also been brought up by Congress MP Rajeev Shukla in the Rajya Sabha while pointing out concerns regarding delayed justice and lack of transparency in the collegium system.
The president proposed All India Judicial Services exam to provide access to work in the judicial services to a broader pool of talent. However, this only aids representation at the level of district judges and additional district judges, and fails to aid in representation in higher judiciary. And as I will make a case ahead, it is the higher judiciary that desperately requires such representation, more so than the lower judiciary.
Judges are selected and recommended to be appointed in the case of higher judiciary through a collegium system, whereby five seniormost judges, including the C.J.I., form such a committee. It was held in the Third Judges case that in case of disagreement between the Chief Justice of India and the President, opinion of the former must prevail, giving almost unregulated control to the collegium.
This opaque system, lacking a real regulatory mechanism other than public outrage leading to central government actions, is highly susceptible to nepotism and casteism. Through this article, I will substantiate this claim, provide reasons as to why the judiciary must be diverse by providing representation to the backwards castes and tribes, and finally give suggestions keeping in mind recent developments, including attempts by the central government to do away with the collegium system or the control that it enjoys.
Need for Representation
Bettering the Judicial System’s Outcomes
Representation would enhance judiciary as a whole because decisions made while interpreting broad constitutional concepts and considering various viewpoints would improve the quality of legal decision-making. Representation has been noticed to be immensely important, especially in the legal profession of judicial decision-making, because different communities have different social norms and widely different lived experiences. These bleed into different political and moral attitudes where judges of different backgrounds are better able to understand reasoning behind views held in their communities. Moreover, it has been documented that a judge’s life experience affects their willingness to credit testimony or understand the impact of their rulings. Instances with such issues, in the Indian context, have been discussed ahead.
Aiding the Scheduled Classes
It would also benefit the underrepresented groups, as they would find these institutions more credible and hence more approachable. Underrepresentation also leads to stereotypes regarding the capability of a group to perform certain tasks or jobs. This is especially damaging, considering persistent and centuries-old stereotypes of the people from scheduled castes and scheduled tribes being less intellectually capable as compared to the upper castes, and such stereotypes may bleed into future appointments in the judiciary. These stereotypes, even if not regarding the competence of the underrepresented castes, can still be detrimental, as one such stereotype had made its way into an erroneous judgement of the Rajasthan High Court, which later had to be overturned by the Supreme Court. The court had held that upper caste men would not rape a Dalit woman as they would find the woman impure and that men of different castes would not participate in gang rape.
It also benefits people from these underrepresented sections on as individual level, as representation in positions of power establishes role models for newcomers as a source of hope and inspiration for those with otherwise limited horizons. As has been stated by psychologists, ingroup experts provide evidence that one’s group belongs in a field and that one can succeed there. It has also been noted to combat stereotypes which might act as hurdles for such newcomers.
The Impact of Lack of Representation
This lack of representation is one of the causes of increased incidents against scheduled caste and scheduled tribe women. The 230th report on atrocities and crimes against women and children stated that one of the major reasons for this increase was the apathetic attitude of various actors, including judges and lawyers. A high acquittal rate was said to motivate and boost confidence of dominant communities for perpetration. It has also been noted that in 2016, of the 1,44,979 cases were sent for trial under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, out of which only 10.4% of cases were disposed while in the same year, the disposal rate of cases overall in the Supreme Court was 55% and High Courts were about 28%. Moreover, only 25.7% of these cases resulted in convictions, while overall, the conviction rates that year for crimes under I.P.C. and S.L.L. crimes were 40.2% and 80.6%, respectively. Finally, of the cases in which the perpetrator is convicted, about 12.3% of the convictions are compounded, even though such provision does not exist in the Atrocities Act.
These results seem to be the effect of similar underlying causes which led the High Court to dismiss testimonies of Dalit men, on account of conflict of interest and inability of the witnesses recount the incidence in exact manner, in the State of Karnataka v. Ingale case. In this case, Dalit men were threatened at gunpoint for insisting to use a public well. The Supreme Court had to later correct this “patent error” and charge the five perpetrators who were earlier acquitted by the High Court. Justice K. Ramaswamy stated that the Untouchability (offences) Act 1955, a special act to protect Scheduled groups’ rights, had a acquittal rate of 75% due to “apathy and lack of proper perspectives” at various levels of the justice system, while specially pointing out the courts. He also added that judges were being swayed by the centuries of dehumanizing traditions.
‘Death Penalty Research Project’ headAnup Surendranath, in an interview taken in 2022, stated, that the Indian criminal justice system works systematically differently for different people talking with regards to factors like class, caste and religion. Furthermore, it victimises already marginalised sections. He gave an example of Bihar where; in one case an upper caste man was arrested for massacre of Dalits and in the other case Dalits were arrested for massacre of upper castes. In these similar cases, Dalits arrested in connection with the Bara massacre continue to be on death row with confirmation by the Supreme Court, while upper castes were acquitted by the Patna High Court. These are some of cases which were a result of discrimination and on a larger scale such similar but subtle discriminatory acts might be one of the major reasons behind the low conviction rate.
Current State of Representation – is the system of appointments a hindrance?
There exists extreme underrepresentation of scheduled caste and scheduled tribe population in the Higher Courts. Out of 575 High Court judges, only 17 judges belong to the Scheduled Caste community and merely 9 from the Scheduled Tribes community. This is in contrast when it comes to the Lower Judiciary, as there is adequate representation, which is usually chalked up to reservation, but a more important aspect is the lack of collegium system. The Scheduled Caste enjoy 14% share as compared to 2.9% in the Higher Judiciary, and the Scheduled Tribes enjoy 12% as compared to 1.5%.
This representation that the scheduled classes enjoy in the lower judiciary does not translate into the higher judiciary due to various reasons. One of them is the fact that only 43.6%, which is less than half the judges appointed to the High Courts, are from the lower judicial services. The majority of the judges are directly appointed from the bar. In 2009, the case was even worse when it was noted that only one-third of the judges were promoted from the subordinate courts, and this was again the case in 2019. This is complimented by the fact that the average age of Judges promoted from the lower judiciary is significantly higher than those appointed from the bar. It was concerningly noted that, of the 100 seniormost judges in high courts, only three were elevated from the services. The average age of a judge appointed from the lower judiciary is 56, while the average age of a judge appointed from the bar is 49. This discriminatory practice affects the tenure of such judges and due to issues of seniority the chance of them being appointed to the Supreme Court or to be appointed to the High Court collegium is similarly affected.
Justice Rang Nath Pandey of the Allahabad High Court gave a written representation to Prime Minister Narendra Modi against his 34 years of experience as a judicial officer, accusing the collegium system of appointing solely on the basis of nepotism and casteism. This is not void of much truth, as in 2013, the Punjab and Haryana High Court collegium had recommended 8 appointments from the bar. This was soon followed by a memorandum signed by a thousand lawyers presented to the President, the Prime Minister, and the Chief Justice of India. It stated that the integrity of the judiciary was at stake as the names recommended for appointment were not on the basis of merit and integrity of the candidate but their relations with former judges and chief justices, there were also specific discrepancies regarding individuals pointed out. Again, in 2018 a similar pattern was noticed, after which the central government pointed out nepotism in 11 out of the 33 names recommended for elevation by the Allahabad High Court, as these were advocates with relations with sitting and retired judges. Such nepotistic actions hurt Dalits uniquely as they have historically not been represented in educated fields, and so if such gatekeeping prevails, Dalits face way worse odds than any other part of society.
Coming to Dalit representation, The American Bar Association’s Centre for Human Rights wrote a chapter titled “Dalit Justice Defenders in India”. It took interviews of various lawyers and judges, sitting and retired. It cited a former High Court Chief Justice on the isolation of Dalit judges within High Courts and emphasised the fact that he faced resistance from his upper-caste colleagues whenever he considered a Dalit lawyer for appointment. A former Supreme Court judge added that Dalit judges are appointed only when they are about to retire, reinforcing the abovementioned contentions. A former Chief Justice of India was cited saying that Dalit lawyers usually have not studied in English-medium schools, restricting their practising to lower judiciary, further decreasing their potential presence in the group of judges appointed through the bar. One retired Supreme Court judge pointed out that even though there are more Dalit lawyers now, they are not being given opportunities as there is almost a complete absence of any representation in the designation of senior advocates in the Supreme Court and High Courts. Finally, this report also pointed out that the absence of Dalit lawyers as senior advocates leads to a lack of mentorship opportunities for first-generation Dalit law graduates and a sitting High Court judge on this issue also pointed out the solution to be recognition of Dalit advocates as seniors.
Suggestions
I have pointed out the issues of discrimination and arbitrariness in the appointments made by the collegium. All sides of the political spectrum, from the central government to the opposition parties and different organs of the state, including the president and even members of the judiciary have accepted the flaws present in this system.
However, C.J.I. DY Chandrachud, in his recent abovementioned reply, said that he cannot disagree with the N.J.A.C. (National Judicial Appointments Commission) judgement as it is the law of the land. This however discounts the fact that judiciary has used its expansive power under judicial review to dissent and change the law of the land. Judicial review was held as a potent weapon for protecting citizens from social exploitation in the Ingale judgement. The court must re-evaluate its stance on the collegium.
Steps can be taken to better this situation, even if the Supreme Court does not find it legally sound to go against the judgement given against N.J.A.C. in Supreme Court Advocates-on-record Association & Anr. vs. Union of India. In the judgment, major contentions were that this act and the establishment of the N.J.A.C. interfered with Judicial independence, the transparency requirements led to privacy concerns, and the right to privacy and right to know were not balanced. The judgement did not give specific explanation as to what the overstepping provisions were. It also talked about how information given by the person appointed may have been made in confidence. If a person is providing information to the committee important with context to their appointment, it should not be of a confidential nature, and if the candidates know that such measures for transparency exist and they still willingly provide confidential information, it must be considered as willing disclosure.
Even without N.J.A.C. in place, the central government has exercised power and meddled in appointments made by the collegium. One such case was of Justice Pushpa Ganediwala, where the collegium asked the Ministry of Law and Justice not to make her a permanent judge, but the Ministry nonetheless extended her term as an additional judge. The Central government also unilaterally segregated the name of Mr Gopal Subramanium and, in another instance, Justice K.M. Joseph from the recommendation made by the collegium for appointment as Supreme Court judges. Justice M.R. Shah was to be transferred according to the recommendation of the collegium, but this recommendation was not processed until the C.J.I. changed and the new C.J.I. took back this recommendation without explicit reasoning. Because of such power being exercised, N.J.A.C. which required the opposition party leader’s partial say regarding the two “eminent persons,” one of whom would also be from a minority community, would have been a better system as it would give a meagre but existing voice to the opposition and some semblance of representation.
International Transparency Measures
Some of the transparency measures which can help our judiciary be more accountable can be borrowed from the United States, a country known for its individual liberties, including the right to privacy. These include Questionnaires with all relevant biographical and financial disclosures as the committee may deem fit and background investigation including documents that may usually not be deemed suitable for public release. A strict restriction of focus to be on professional qualifications, competence, judicial temperament, and deviance, which is especially needed in India to monitor potential caste-based discrimination. Public persons should be allowed to provide evidence alleging unfair practice or disgraceful behaviour in the past, because in Indian this will provide a strong check on damaging behaviour that a judge might have against minorities. Finally, all the information gathered, used and the manner in which they were used to come to the conclusion of appointing the candidate must be made public for scrutiny. Moreover, any discussion had in the business of such appointments must be on record so that instances of casteism, as mentioned above, do not take place. To make sure that such proceedings do not harm the faith that the public has in the judiciary, this questioning must be done respectfully, purely based on facts.
The “Due Process of Law Foundation” also has presented a few criteria to be met in judicial appointments, like a pre-established clear set of standards to judge the candidates on, including the qualifications of the judges and the list of candidates, which would make it accessible for the public to know if there have been discrepancies as were discussed earlier. They also reiterate the accessibility for third parties to submit information about a candidate’s history or previous disgraceful acts.
Other Measures to be Implemented
Another measure that can be taken, keeping in mind the unique issues faced in the Indian context, is a cap on the appointments made through the bar. At the Chief Justices’ Conference in 2009, it was considered to be a grave issue, and efforts have been made to decrease this number, but a strict ceiling would serve the judiciary much better. There should also be a check on the age of candidates selected from lower judiciary, and the age at which bar appointments are made should be increased to match that of lower judiciary and should be strictly adhered to. This would ensure more representation of judges from the lower judiciary which has a more equitable representation of judges belonging to scheduled groups. There also exists underrepresentation of people belonging to such groups as senior advocates, who would be selected as judges. Sensitisation programmes should be run in the higher judiciary to eradicate all explicit forms of casteist beliefs in arguably the most important and trusted organ of the government.
Conclusion
In conclusion, the lack of diversity and the resulting harm that is being caused across society is evident. Urgent steps need to be taken if the Judicial system to safeguard the rights of the citizens who are being discriminated against. The existing process of selection of judges is highly opaque and arbitrary, with no set criteria being followed. Protection against these has been guaranteed under articles 14, 15 and 16 of the Constitution of India. Moreover, the low conviction rates stand against the ideas of justice preserved by the Directive Principles of State Policy under article 46, which aim to safeguard such classes from social injustices and exploitation.
Recently, this issue has received significant political attention; however, the change must come from the Judiciary. The checks employed by the central government are equally arbitrary, opaque and lack accountability, with potential to compromise the independence of the judiciary.
The solutions and suggestions as mentioned above can pave a way for a more representative and responsible judiciary. However, it is the implementation and initiative of the insiders of the system that matters the most. Till the changes are made, this opaque criterion continues to be an utter violation of the ideas of justice, causing unimaginable prejudice to lower castes when it comes to their access to fair justice.
*Hardik Kuldeep is a second year student at Dr. Ram Manohar Lohiya National Law University, Lucknow. His keen interest lies in public policy. He is fascinated by the juncture of legal philosophies intersect with practical implementation, viewing law as the embodiment of widely held moral beliefs.
