Four years after the Delhi High Court first recommended the name of advocate Saurabh Kirpal for appointment as a judge, a three-member Supreme Court Collegium has finally approved the proposal. While this step itself is very welcome, one needs to wait and see what the final outcome will be and whether he is eventually appointed, as this is only the first step in the process. Objections have already been raised about him, and will continue to pop up till his formal appointment by the President – if that happens. And, no doubt, even after that.
The verdict of the higher judiciary is often the last word on the interpretation of the law that governs millions of people and their destinies across the country. Therefore, it is essential that judges are drawn from the widest spectrum of society to bear upon the law of the land. A more representative judiciary therefore is always desirable as different classes of judges will bring their own unique perspectives and thoughts to the cases that are placed before them. A more representative judiciary would also hopefully be a balanced judiciary which will encourage a frank and open discussion on matters of constitutional importance, and of concern to sections of the population which otherwise remain invisible.
At the Subordinate and District courts that some states have quotas for traditionally disadvantaged castes and tribes. Most do not. A few, like Andhra Pradesh and Bihar, have reservations for women. Beyond statutory reservations, there is no further effort in improving their diversity profiles and becoming more inclusive. Being inclusive is more than just reservations for a clutch of castes.
The India Justice Report 2020 has pointed out that data for diversity among judges remains largely unavailable, particularly in the subordinate courts. From what is publicly available, one can barely cull out gender diversity. The profile is predictable. In 2019, across states, figures for women subordinate court judges come in at double digits — nationally, it’s 30 per cent. The Supreme Court has seen Dalit and minority chief justices, but overall, as with the high courts, it remains a bastion of men. Muslim chief justices belong in the past and a Christian perhaps to the future, but women are nowhere on the horizon. A homogeneous judiciary can be unhelpful in providing justice as it is bound to see the world and the cases brought before it from their own class interests and be blind to other sensitivities. Such a judiciary may not be able to cater to the needs of sections of populations very different from their own. At worst, they may harbour latent prejudices, which may get ingrained in the judicial process.
According to the constitution, individuals from three professional backgrounds are eligible to be appointed as a Supreme Court Judge — judges of high courts (HC Cadre), practicing advocates (Bar) and distinguished jurists. In reality, the majority of the judges in the Supreme Court are appointed from the HC cadre (96.76 per cent). Rest of the appointees (3.24 per cent) are appointed directly from the Bar. To date, no jurist has been appointed as a judge.
While a lot has been said about gender and caste composition of the judiciary, diversification is more than that. Even in matters of gender, there is the matter of including judges whose sexuality is non-binary, but even going beyond that there is a need to include as far as possible, ethnic and religious minorities, tribal populations, those with disabilities and other under- represented groups.
Then, there is the matter of domain expertise. Laws are enacted by parliament but mostly (or ideally) after sufficient domain knowledge has been obtained from subject matter experts as it is not feasible for parliamentarians to have knowledge on every subject on which laws are being made. The same can be said of judges.
In fact, domain expertise is very rarely talked about. Some time ago, I was reading about Justice Anand Venkatesh of the Madras High Court. When a case involving a gay couple was posted before him, he sought time to obtain knowledge on a subject with which he was not inherently familiar so that he could be as fair as possible in his understanding and attitude while delivering a verdict. In the many hearings of the case, Justice Venkatesh put his own lack of knowledge about the LGBTQIA+ community on record, and sought out psychologists and members of the trans-community to educate himself.
As I write, there is speculation about the upcoming session of parliament passing a law banning several private crypto currencies. If such a law is indeed enacted and is subsequently challenged in the court, how many Judges can honestly claim that they know all there is to know about crypto currency which is an evolving and unregulated phenomena and their pros and cons to be able to pass an informed judgement? Judges participate in hearings and eventually pass judgements on complex taxation matters, maritime law, international trade law and numerous matters which are separate fields of study in themselves.
To cite another case, also from the Madras High Court, it had to recently withdrew an order that mandated all new vehicles in Tamil Nadu to have a five-year bumper-to-bumper insurance coverage. It was forced to do so as industry bodies brought to its notice that such a product is non-existent and even not feasible, presently. Obviously, the court lacked the technical knowledge, though it surely had good intentions. A courtroom mostly has people who are experts in law and have the best understanding of what is just and fair. However, the executive has a varied set of people ranging from experts in niche subjects and administrators with the best grasp of ground realities. If Judges and Courts are dealing with a range of subjects such as financial scandals, stock market manipulations, environmental degradation and such, judges should necessarily seek technical expertise. There is nothing wrong in seeking help from domain experts before pronouncing verdicts on such subjects but even better is if some rage of domain expertise is available among the Judges themselves.
Across the world, diversity is a hallmark of effective institutions. India’s Constitution commits public institutions to equal opportunity. The presence of people of different religions, caste, class, language groups and gender demonstrates the operationalisation of this value. Just as the lack of representation exhibits bias. The real goal of a genuinely representative judiciary is, after all, to achieve justice in action. India was ranked 62nd among 113 countries in the World Justice Project’s ‘Rule of Law’ index that was published in January. India was placed 98th in the ranking for order and security, 97th for civil justice, 75th for fundamental rights, and 66th for criminal justice. A long journey lies ahead.
