A mischievous game is afoot

A recent report about the social composition of the higher judiciary aims to show that it should better reflect society by giving more representation to all sections of it. According to a presentation made by the law ministry to a parliamentary panel, 79 per cent of all High Court judges appointed between 2018 and 2022 were from upper castes, and there is “inequitable representation of backward and minority communities.” Minorities, who constitute 20 per cent of the population, have only 2.6 per cent representation. The Scheduled Castes, who comprise 16 per cent, are 2.8 per cent and the Scheduled Tribes, who comprise 8 per cent of the population, have only 1.3 per cent representation. The report specifically mentioned the “discrimination” against OBC communities, pointing out that they accounted for only 11 per cent of the appointments though they make up more than 35 per cent of the population. Women, who constitute half the population, have only 13 per cent representation.

In a democracy which gives equal opportunities to all individuals and groups, no group should have complaints of discrimination and under-representation in the government and State institutions and agencies. The weaker sections should get special consideration, because of the accepted State policy that they should be encouraged to move forward in society. From that perspective, the representation in the judiciary does not meet the right standards of equity, fairness and the best norms of social justice. This has been pointed out in the past also as a drawback of the collegium system of appointments. There have been charges that the appointments are influenced by nepotism and favouritism and that they lack transparency. Most of the judicial positions in the past were dominated by the higher castes and the collegium system has not been able to make a departure from that. The Chief Justice of India D Y Chandrachud has noted that the HC judges' composition needed to change.

But the government has come out with this data as part of its campaign against the collegium system. It has blamed the system for the under-representation of some sections by saying that it “only appoints those who are recommended by the collegium”. Law Minister Kiren Rijiju, who has led this campaign, has said that the ministry has received many complaints about under-representation. But it should be noted that his government itself does not give fair representation to all sections of society. The Union cabinet does not have a single Muslim. Women’s representation is far too short of the desired levels. It is the executive and the legislature that are required to be more socially representative, more so than constitutional institutions like the judiciary. It should be noted that the government has held up the appointment of a gay person to the judiciary. All institutions should be inclusive and representative, but the government is clearly seeking to play a mischievous game with this report on the judiciary.