As EWS ruling shows, poor diversity continues to dog Indian judiciary

On November 7, the Supreme Court upheld the constitutional validity of  10 per cent reservation for economically weaker sections (EWS), excluding the Scheduled Castes, Scheduled Tribes and Other Backward Classes, in government jobs and educational institutions. Autopsies of the verdict have, since, largely oscillated between the constitutional aspects of the judgment and the gaping lacunae within the EWS quota policy framework.

It is, however, equally important to dispassionately analyse the appalling lack of social diversity in the judiciary, particularly the higher judiciary, given that judgments such as the one passed in the EWS quota case have vast social implications.

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It has escaped none that the Constitution Bench that upheld the EWS quota, albeit by a 3:2 majority, comprised only judges who belonged to the Hindu upper castes. The apex court currently has 27 serving judges against a sanctioned bench strength of 34 judges.

Poor representation of lower castes, none from ST

While the top court has not had any representation from the Scheduled Tribe  community since 2008, Justices BR Gavai and CT Ravikumar belong to the Scheduled Caste community while Justice MM Sundresh is the only serving judge from the OBC community. However, none of these judges from the oppressed and backward communities were part of the five-judge bench that ruled on the EWS quota even though the issue under adjudication has a direct and far-reaching social impact on the SC, ST and OBC communities.

Attributing a caste bias to the three judges – Justices Dinesh Maheshwari, Bela Trivedi and JB Pardiwala – who favoured an EWS quota that excludes the historically oppressed communities may neither be prudent nor justified; more so as the judges who dissented with the majority view – Chief Justice of India (now retired) UU Lalit and Justice Ravindra Bhat – also belong to Hindu forward castes.

In its nearly 75-year history, while the higher judiciary has often adjudicated on matters directly or tangentially linked with India’s diversity, it has, ironically, failed to celebrate this same diversity within its ranks

Yet, it is worth asking if the court would have reached a different conclusion had the presiding bench in the case included judges from the communities which the EWS quota seeks to exclude from its ambit.

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That the five-judge bench did not pass a unanimous verdict cannot be grounds to dismiss, in entirety, concerns over the lack of a composite socio-cultural/economic perspective that the judiciary at large has often demonstrated while dealing with matters critical to upholding the constitutional vision of building an egalitarian society.

In March 2018, a two-judge bench of the apex court comprising Justices AK Goel and UU Lalit (both retired now) had severely diluted provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989, triggering nationwide protests by Dalit and adivasi organisations.

Back then, angry observations were made by social commentators on how the hegemony of the Hindu upper castes in the judiciary had ostensibly made the courts blind to historic injustices, and their modern-day iterations, that the oppressed communities faced. The protests had forced the Centre to file a review petition, following which a three-judge bench, comprising Justices Arun Mishra, MR Shah and BR Gavai, had recalled the March 2018 judgment.

Not diverse enough

In its nearly 75-year history, while the higher judiciary has often adjudicated on matters directly or tangentially linked with India’s diversity, including issues such as reservations or the SC/ST (Prevention of Atrocities) Act, the higher judiciary has, ironically, failed to celebrate this same diversity within its ranks.

The apex court got its first judge from the Dalit community – Justice A  Varadarajan – only in December 1980. The next such appointment came nine years later with the elevation of Justice K. Ramaswamy to the apex court

Data laid out in the following paragraphs would put this observation into perspective. This data is confined largely to the Supreme Court as there are no centralised statistics available on the demographic break-up of the judiciary. As such, identifying the caste or religion of some 800 judges currently serving across various high courts purely on the basis of their names would pose the risk of misrepresentation.

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In his book Judges of the Supreme Court of India: 1950-1989, political scientist GH Gadbois notes that the total number of SC, ST and OBC judges at the Supreme Court during the first four decades of its existence never once crossed the 10 per cent mark.

The apex court got its first judge from the Dalit community – Justice A  Varadarajan – only in December 1980. The next such appointment came nine years later with the elevation of Justice K. Ramaswamy to the apex court. A year earlier, in December 1980, the SC had also got its first OBC judge, Justice Ratnavel Pandian.

Till date, only six judges from the SC community – Justices Varadarajan, Ramaswamy,  BC Ray, KG Balakrishnan, BR Gavai and CT Ravikumar (the latter two are currently serving as judges) – have made it to the apex court. Of these, Justice Balakrishnan went on to serve as India’s first Dalit CJI (January 2007 to May 2010) and Justice Gavai is in line to become the CJI, albeit for a brief period of about six months, in May 2025.

Interestingly, when the Collegium recommended the elevation of Justice Gavai to the Supreme Court in May 2019 (he was a judge at the Bombay High Court then), its resolution explicitly mentioned “the Supreme Court Bench will have a judge belonging to Scheduled Caste category after about a decade”. The resolution was a clear acknowledgement of the skewed demographic diversity within the apex judiciary.

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For India’s tribal community, representation at the highest level of judiciary remained a dream till as recently as 2002 when Justice HK Sema from the Nagaland High Court (he later served as chief justice of the Gujarat High Court) was elevated to the Supreme Court. Justice Sema, who retired in 2008, remains the only member of the ST community to have ever been elevated as a judge of the Supreme Court.

Lacking in religious, gender diversity, too

The lack of centralised data on the caste or religion of individual judges at the high courts makes it difficult to outline the exact extent of the prevailing disparity in representation of various communities in the higher judiciary. However, a 2016 report of the National Commission for Scheduled Castes (NCSC) titled ‘Reservation in Judiciary’ indicates representation of oppressed and backward communities is as skewed in the high courts as it is at the Supreme Court.

For India’s tribal community, representation at the supreme court remained a dream till as recently as 2002, when Justice HK Sema from the Nagaland High Court  was elevated to the SC. he remains the only member of the ST community to have ever been elevated as an apex court judge

The NCSC report referred to data gathered from high courts in 2011 and concluded that of the 850 judges serving across the then-existing 21 high courts (the number of high courts in the country is now 25), only 24 belonged to the SC and ST communities. It goes on to add that as many 14 high courts did not have a single judge from these two communities.

This lack of diversity in the apex judiciary also extends, in varying degrees, to women and religious minorities. In the seven decades since the Supreme Court was founded, its Bench has had only 11 women judges, starting with Justice Fathima Beevi, who was appointed to the apex judiciary in October 1989. Over the next 25 years, only five other women – Justices Sujata Manohar, Ruma Pal, Gyan Sudha Mishra, Ranjana Desai and R. Banumathi – could make the cut.

Efforts made to include women judges

It must, however, be acknowledged that in the past decade, the Collegium has made an attempt to increase women representation in the apex judiciary. The past eight years have seen five women judges – Justices Indu Malhotra and Indira Banerjee (now retired) and the currently serving Justices Hima Kohli, Bela Trivedi and BV Nagarathna – appointed as Supreme Court judges. Justice Nagarathna is in line to become the country’s first woman CJI in September 2027, though her tenure is expected to last for just a little over a month.

As per data obtained from the Union law ministry’s Department of Justice, as of August 1, 2022, of the total working strength of 729 judges across various high courts, only 96 were women. There wasn’t a single woman judge at five high courts – Patna, Tripura, Uttarakhand, Manipur and Meghalaya – while the high courts of Chhattisgarh, Jharkhand, Orissa and Sikkim had only one woman judge each.

The subordinate judiciary, for which judges are appointed through an examination process and with varying degrees and categories of reservations across different states, the demographic disparity is less evident, even though representations continue to be grossly skewed.

In 2018, 11 states had submitted a caste-wise break up of their respective subordinate judiciary to the Union law ministry. As per the data received by the ministry, the representation of ST, SC and OBCs in the subordinate judiciary, including district courts, in these 11 states stood at around 12, 14 and 12 per cent, respectively.

The lack of diversity in the apex judiciary also extends, in varying degrees, to women and religious minorities. In the seven decades since the Supreme Court was founded, its Bench has had only 11 women judges

According to the Department of Justice, as of August 2022, representation of women in the subordinate judiciary across all states seems to be on the rise, though still far from adequate. As per official statistics obtained from the law ministry, the number of women working as civil judges (junior division) and civil judges (senior division) stood at 3,719 and 1611, respectively, while there were a total of 1,435 women district judges across the states.

The Vidhi Centre for Legal Policy claims that women representation in the subordinate judiciary has gone up to a little over 20 per cent from the near 18 per cent in 2017 while women constitute just about 11 per cent of the total number of judges across high courts.

Few from religious minorities

The case with the share religious minorities get in the higher judiciary, particularly apex, isn’t very different either even though the Supreme Court, since 1950, has followed the convention of reserving one spot on its bench for a Muslim judge. This unwritten quota, one may argue, began with the appointment of Justice S Fazl Ali as a judge of the Supreme Court on January 26, 1950. The current occupant of this informal ‘Muslim seat’ at the SC is Justice S Abdul Nazeer — also the only Muslim judge currently serving in the apex judiciary.

Justice M Hidayatullah, who was appointed to the SC in January 1958 and went on to serve as CJI from February 1968 to December 1970, was arguably the only judge who refused to be elevated to the apex judiciary merely to fulfil the requirement for a Muslim judge on the Bench.

Justice M Hidayatullah was arguably the only judge who refused to be elevated to the apex judiciary merely to fulfil the requirement for a Muslim judge on the Bench

It is widely believed in judicial circles that Justice Hidayatullah’s elevation to the Supreme Court at a time when the court already had a Muslim judge, Justice Syed Jaffer Imam, was because of his insistence on breaking the impression of a one-seat Muslim quota in the apex judiciary and, at a more personal level, establish that it was merit and not the religious identity that earned him the high chair.

To the lay observer, the fact that of the 50 CJIs India has had since 1950, four were Muslims (Justices Hidayatullah, MH Beg, AM Ahmadi and Altamas Kabir), one a Sikh (Justice JS Khehar) while two others, Justices SP Bharucha and SH Kapadia, belonged to the minuscule Parsi community may seem like a sign of religious diversity in the apex judiciary. However, when compared with the overall representation that religious minorities have had in the higher judiciary, what emerges is a clear lack of religious diversity.

Though there has always been a Muslim judge through the decades at the Supreme Court, the number of judges from the community who have concurrently served in the apex judiciary has rarely ever exceeded two despite a gradual increase in the sanctioned strength of the top court’s bench.

Skewed ratio of Muslim judges

On the contrary, as the sanctioned strength of judges across high courts and the Supreme Court increased over the years, the percentage of Muslim judges seems to have declined – from a high of 6.8 per cent in 1988 to just around 5 per cent currently. This despite nearly 15 per cent of India’s population being Muslim and the higher judiciary being routinely called upon to adjudicate on matters of immense religious and identitary significance to the community.

 statistics show that the higher judiciary, while being the  custodian of the rights of all denominations of the country’s population, irrespective of caste, religion or gender, has not just remained captive to the elite Hindu upper/forward castes but has also made no sustained efforts to become inclusive

The statistics show that the higher judiciary, while being the parens patriae and custodian of the rights of all denominations of the country’s population, irrespective of caste, religion or gender, has not just remained captive to the elite Hindu upper/forward castes but has also made no sustained efforts to become inclusive.

The Collegium, which recommends appointments to the higher judiciary, is invariably stacked with upper class Hindus because the apex judiciary it is drawn from is itself populated largely by this community. This only makes it easier for critics to paint the Collegium as a cosy club of upper caste Hindus who rarely scout for candidates beyond their elite social circle. While this may be mere conjecture, what is undeniable is that the higher judiciary has consistently failed the diversity test.

With representation for oppressed and backward communities in the higher judiciary remaining abysmally low, it is natural for the high courts and the Supreme Court to be accused of being oblivious to an entire spectrum of social perspectives while adjudicating cases in which such viewpoints are of critical importance. The EWS quota verdict is no different.

Why diversity matters

It may be argued that the construct of justice is neutral to caste, class or gender and must be delivered per provisions of the Constitution and other relevant statutes. As such, it may be then argued that the demographic composition of the judiciary is immaterial as long as judges adjudicate matters purely per the law. In practice, though, particularly in a country like India where the Constitution and sundry other laws specifically recognise the need for safeguards against assaults on diversity – ethnic, religious, gender, economic or cultural – such arguments ring askew.

A diverse demographic composition of the bench is important for a diversity of perspectives, which, in turn, has the capacity to isolate judiciary from the added charge of caste/class/gender bias and, simultaneously, in boosting public confidence in critical judicial pronouncements.