Case for diversity in higher courts

Former Chief Justice Suresh Kumar Kait claims the collegium is "dishonest" in judge appointments, citing underrepresentation of SC, ST, and OBC groups.

A former chief justice of Madhya Pradesh High Court, Suresh Kumar Kait, has alleged that the collegium, which makes the final selection of judges to constitutional courts, is “dishonest” in its treatment of people from the Scheduled Castes (SC), Scheduled Tribes (ST), and Other Backwards Classes (OBC), while making appointments to the high courts. His claim rests on the fact that the number of judges from these social groups is not commensurate with their share in the country’s population. Kait has proposed reservations to address this anomaly. Kait’s very subjective description of the conduct of the collegium could be discarded, but his remark about the lack of diversity and representation in high courts surely calls for a conversation.

Data shows that despite the best intentions of the collegium, the higher judiciary remains mostly the preserve of upper caste Hindus. (Rahul Singh)

To be sure, the Memorandum of Procedure (MoP), which guides appointments in constitutional courts, has not proposed caste quotas in judiciary. The collegium makes its choices using MoP as a guide and, after due consideration, which includes consultations with the government and review of feedback from State agencies, appoints the judges. Merit and seniority are considerations when the collegium looks at the candidates, but multiple chief justices of the Supreme Court have said they try to ensure that appointments reflect the social diversity of the country.

However, data shows that despite the best intentions of the collegium, the higher judiciary remains mostly the preserve of upper caste Hindus. A response by the government in the Lok Sabha in December 2024 reveals that out of 684 high court judges appointed since 2018, 21 belong to SC category, 14 to ST category, and 82 belong to OBC category. In percentage terms, this is 3%, 2%, and 12% of the appointments, whereas the share of these groups in the population (as per the National Family Health Survey, 2019-2021) is 22%, 9.5%, and 42%. A data analysis by HT revealed that 75.6% of judges in the Supreme Court during 2010-25 belonged to Hindu upper castes, whereas OBC representation was limited to 7.8%. The representation trend has improved over the decades, though the change has been far from adequate. Kait’s attempt to shame the collegium as “dishonest” is uncalled for, but the data is glaring for anyone to ignore that Dalits, tribals and OBCs are underrepresented in constitutional courts.

Appointments to constitutional posts have not followed any principle of affirmative action, but representation has become a political question — so much so that no party can ignore it in the selection of people to ministerial positions and high public office. The inclusion of caste enumeration in the census and legislation on women’s reservation in Parliament suggest that representation and diversity have become central to public life and appointments. The judiciary’s turn has come.