How diverse and inclusive is the Indian judiciary?

On January 19, the Supreme Court Collegium, headed by Chief Justice of India D Y Chandrachudand comprising of Justices S K Kaul and K M Joseph, reiterated its decision to appoint five advocates as High Court judges. Amongst the five candidates, the collegium recommended the name of senior advocate Saurabh Kirpal for appointment as judge of the Delhi High Court.The three-member Collegium said the proposal for appointment of Kirpal as a judge of the high court has been pending for over five years and needs to be processed expeditiously.

Saurabh Kripal, the son of BN Kripal, former CJI of the country, Kirpal openly identifies as a gay man – and lives with his partner in New Delhi. The recommendation was unanimously made by the Collegium of the Delhi High Court on October 13, 2017 and approved by the Supreme Court Collegium on November 11, 2021. Setting a new standard for transparency in the otherwise veiled and centred collegium, CJI Chandrachud publicly released the objections that were posed by the Centre and the reasons given by the collegium while reiterating its recommendations.

The Collegium, referring to communication from the Research & Analysis Wing and former Union Law Minister Ravi Shankar Prasad, said that “it appears that there are two objections to the recommendation which was made by the Collegium of this Court on 11 November 2021 approving the name of Shri Saurabh Kirpal namely: (i) the partner of Shri Saurabh Kirpal is a Swiss National, and (ii) he is in an intimate relationship and is open about his sexual orientation.”

Objections forwarded by the Centre

1. Saurabh Kripal’s partner being a Swiss National

Rejecting this objection, the Collegium had said: “As a matter of principle, there can be no objection to the candidature of advocate Saurabh Kirpal on the ground that his partner is a foreign National.” “There is no reason to pre-suppose that the partner of the candidate, who is a Swiss National, would be inimically disposed to our country, since the country of his origin is a friendly nation. Many persons in high positions including present and past holders of Constitutional offices have and have had spouses who are foreign Nationals,” the Collegium had said.

2. The sexual orientation of Saurabh Kripal

“The letter of the Law Minister dated April 1, 2021states that though ‘homosexuality stands de-criminalised in India, nonetheless same-sex marriage still remains bereft of recognition either in codified statutory law or uncodified personal law in India. Moreover, it has been stated that the candidate’s ‘ardent involvement and passionate attachment to the cause of gay-rights’ would not rule out the possibility of bias and prejudice,” the Collegium statement said.

On the Centre’s concerns about Kirpal’s sexual orientation, the Collegium’s statement lauded Kirpal for being open about his sexual orientation, saying it “goes to his credit” that he has not been surreptitious about it.

The Collegium said that “it would be manifestly contrary to the constitutional principles laid down by the Supreme Court to reject his candidature on that ground.”

“Furthermore, in regards to this objection, it needs to be noted that the decisions of the Constitution Bench of this Court have established the constitutional position that every individual is entitled to maintain their own dignity and individuality, based on sexual orientation. The fact that Saurabh Kirpal has been open about his orientation is a matter which goes to his credit. As a prospective candidate for judgeship, he has not been surreptitious about his orientation.

“His appointment will add value to the Bench of the Delhi High Court and provide inclusion and diversity. His conduct and behaviour have been above board. It may have been advisable for the candidate not to speak to the Press in regard to the reasons which may have weighed in the recommendations of the Collegium being sent back for reconsideration. However, this aspect should not be considered as a negative feature, particularly since the name has remained pending for over five years,” the Collegium said.

A small victory despite a delay of five years

The Supreme Court has now openly backed senior advocate Saurabh Kripal in his fight against homophobia and discrimination. But, as the objections put forth by the Centre are released,other issues have come to the forefront. Even though homosexuality has been de-criminalised in India in the year 2018, an upper caste gay man had to wait five years, until now, before he could be considered for a promotion that he deserved.

Diversity in judiciary

It is pertinent to note, that one of the objections that were forwarded by the Centre revolved around the bias that an openly gay man might hold. In other words, the Centre has subtly said that Saurabh Kripal may give out such pronouncements that might keep up with changing times and would be progressive for the LGBTQIA+ community, which in turn might cause a ripple in this male upper caste dominated system. Every day, many petitions concerning religious minorities, caste minorities, gender minorities and the LGBTQIA+ communities are filed in courts. The orders in most such cases are pronounced by benches where no member is from the marginalised community directly affected. Even during the judgement pronouncing decriminalisation of homosexuality, the constitutional bench comprised of people who were not from the community.

The questions that arise now is that if the existing judges of the Courts are equipped to handle such cases. How diverse is the current judicial system? And, how fair are the judgements that are given by benches where there is no representation of the community that has filed the petitions.

Even in cases of judgements concerning the communities of Dalits, Adivasis, Women, Transgender people, Muslims or Christians, how much of the opinion of the affected communities are taken into consideration before the judgements are pronounced, if no member from the marginalised community exist on the bench?

To date, 247 judges have been appointed to the Supreme Court. The maximum strength of judges initially was eight, which has now been stretched to 34. As on the date of penning this piece, from the current list of the 28 sitting judges at the Supreme Court, only three women judges are present, namely Justices Hima Kohli, Bela Trivedi and B.V. Nagarathna, one Muslim judge, Abdul Nazeer, one Parsi judge, namely Justice Jamshed Burjor Pardiwala, one Christian judge, namely K.M. Joseph, and two Dalit judges, C.T. Ravikumar and Bhushan Ramkrishna Gavai. None of the current judges are from the queer community or the ST community. Through this, it can be deduced that even the current list of judges sitting at the Supreme Court, a majority of them are from the privileged castes.

Women and other marginalised communities, such as Scheduled Castes and Scheduled Tribes, are chronically under-represented. Despite the fact that there are over a hundred million indigenous tribal members, no judge from a Scheduled Tribe has ever been appointed to the Supreme Court in its 70-year history. Only three of the 25 Supreme Court justices chosen since 2014 have been women, with two more appointed in 2018.[1] Despite accounting for around 25% of the Indian population, neither Scheduled Castes nor Scheduled Tribes are adequately represented on the Bench. Frequently, the Supreme Court rules on issues affecting marginalised people.

Recent judgements on problems impacting these communities, such as the eviction from forests or compensation awards, have shattered these groups’ faith in the Court. The Supreme Court is not representational of India’s diversity, despite the fact that it, like other state institutions, should work towards inculcating people from all communities, especially women belonging to the marginalized community. It has been debated by many that higher judiciary operates like ‘Old Boys Club’ given the high levels of representation of just a few families on High Court and Supreme Court benches.

Gender Representation in the judiciary

Women Representation:

On September 1, 2021, when Justices Hima Kohli, Bela Trivedi and B.V. Nagarathna were sworn in as judges of the Supreme Court, the Law Minister Kiren Rijiju had called it a “historic moment for gender representation”; India’s ambassador to the US said it was “a proud moment”; and many others tweeted congratulatory messages to the new justices on their “momentous day”. While the nominations were undoubtedly applauded because they decreased the gender imbalance in India’s top court, a majority of people believed the celebrations were premature because the uneven gender balance in India’s judiciary had yet to be addressed. The most women members present the Supreme Court had been 4, the current three and the now retired Justice Indira Banerjee.

Retired Chief Justice NV Ramana had been a vocal advocate of getting more women judges appointed in the judiciary. He had once said, “After 75 years of independence, one would expect at least 50% representation for women in the judiciary at all levels. But with great difficulty, we have now achieved a mere 11% representation of women in the Supreme Court.”^[2]

While our current CJI is a man with a hitherto unmatched vocal awareness on gender issues who promotes gender empowerment, it is crucial that matters which affect the whole community of women, such as marital rape or grant of period leave, are heard and decided by benches with women representation. The presence of adequate women on the bench, not just in the Supreme Court but in High Courts and trial courts is critical to the judiciary’s legitimacy.

Achieving equality for women judges in regards to their representation at all tiers of the judiciary and on policy-making judicial councils should be our objective, not only for women, but also for the accomplishment of a more just rule of law.  Women judges apply their lived experiences to their judicial acts, experiences that trend toward a more comprehensive and empathic perspective—one that includes not only the legal foundation for judicial action, but also understanding of the implications on those affected.

LGBTQIA+ representation:

Joyita Mondal became the first openly transgender person to be appointed as a judge of a Lok Adalat, or People’s Court, in the year 2017. This accomplishment, at 29 years old, was the pinnacle of her path from homeless school dropout to founder of an organisation (‘Dinajpur Notun Alo’) dedicated to assisting transgender Indians in her region.

This was a significant victory for the transgender community, as there are few options for transgender people in India, many of whom are forced to beg or work as sex workers to survive. Joyita’s appointment was approved since she is a social worker with “proven credibility as a judge.”

If the recommendation of Saurabh Kripal is finally –albeit with reluctance –accepted by the Centre, he will become the first openly gay man to be appointed as a judge in the judiciary. As can be deduced from this, there is a dire need for more LGBTQIA+ representation in the judiciary. On the other hand, it is probable that some members of the bench do belong to the community but have kept their identity hidden owing to the stigma attached to the same. The appointment of Kirpal as judge will open doors of opportunity for the LGBTQIA+ community to identify themselves so, despite being at the Bar or even the Bench.

On Constitution Day 2022, the Supreme Court of India issued a Sensitization Module for the Judiciary on the LGBTQIA+ Community, with the goal of educating judges, magistrates, and judicial personnel in India about the LGBTQIA+ community. One of its primary points is the admission that there are no legal or constitutional safeguards in India to protect members of the queer community from discrimination.

The guidebook was developed as a collection of recommendations that may be adopted by some courts and judges. The authors to the handbook are diverse as well, including lawyers, activists, and scholars; nevertheless, it is unclear whether there is adequate representation from queer and trans* people practicing law.

The module lays down guidelines for police and magistrates to follow when adjudicating criminal complaints or dealing with issues filed by or against LGBTIQA+ individuals, which is critical because police awareness of how they should treat people from the LGBTQIA+ community has been mostly lacking.

Caste and Religion based representation in the judiciary

Religion based representation:

Muslims are not simply one of India’s many minority groups; they constitute one of the largest Muslim populations in the world and hence a significant minority. In India, Muslims account for about 15% of the population, but their presence in the higher judiciary is almost non-existent. Currently, the Supreme Court has only one Muslim justice. Many legal luminaries and scholars believe that Muslims should have enough representation in the higher judiciary so that minorities can have faith in the highest judicial institution that decides the legal fate of the nation.

In the recent past, a number of issues concerning the Muslim population have been decided upon by the Supreme Court. From the issue of hijab ban on Muslim women, on which a split judgement was delivered, and the Gyan Vapi case (where the matter of applicability of the sensitive Places of Worship Act, 1991 has been called to account, to cases of hate speech, targeted violence and forced evictions against Muslims have been pronounced by various high courts and the Supreme Court. In most of these cases, the bench comprised of judges who did not hail from the affected community at all. It is crucial that while major judgements affecting the Muslim minority are given, a member from the community is present. Doing this might increase the trust of the public in the judiciary as well as bring a much needed ground perspective.

Caste based representation

Inequitable representation of backward and minority communities in higher judiciary is evident from the fact that 79% of all high court judges appointed in the past five years (2018 to 2022) are from privileged castes, according to a presentation made recently by the Union law ministry before a parliamentary panel.[3] Absence of judges from agrarian communities (farmers) or those from the working class backgrounds render sensitivity of the Bench to issues of farmers and worker’s rights a serious question.

Scheduled caste representation in the legislature, executive and public services, was included in the Constitution. However, this did not extend to the judiciary.

The first Scheduled Caste judge to be appointed was Justice K. Varadarajan in December 1980. After his appointment, there was always one Scheduled Caste judge at the Court until 2010.It is also worth noting that except for a short period of a year in 1990, two Dalit judges had not served on the Court at the same time, till this was changed in August 2021, with the appointment of Justice C.T. Ravikumar. Justice Ravikumar belongs to the Scheduled Caste community. His appointment, in addition to Justice Bhushan Ramkrishna Gavai is significant: this now means that 6% of sitting judges in the Supreme Court now belong from a Scheduled Caste.

But, even after more than seven decades of achieving independence, there is almost no representation of the Scheduled Tribes. The SC/ST communities in India has been, and still are, one of the most oppressed and otherised communities. The violence against the SC and ST communities have been increasing. When an upper caste individual pronounces a judgement on issues concerning the caste minorities, their knowledge on the level of discrimination and ostracisation faced by them is limited. Legislation requires judges to use their independent discretion and reasoning to decide various matters depending on their facts. It is hard for judges not to draw from their own lived experience when doing so. This is why, among other aspects of diversity of identity, a close look at the diversity and plurality within India’s higher and other judiciary is essential; to ensure equitable representation and comprehension of the interests and issues of all classes of people.

Conclusion

In the current judicial system of India, there exists a hegemony of privileged caste Hindu men. While on the one hand it can be argued that diversity of any kind enhances the court’s legitimacy and builds public confidence, there is considerably more merit in substantive diversity. Often, diversity then becomes a token symbol to evoke a feeling of representation and inclusivity in the highest courts. 

The reiteration of Saurabh Kripal’s recommendation with the aim of promoting diversity is a progressive and much needed step towards passing the mic and making space for individuals who can push for equal rights and prevent regressive legislation from being passed. It is however a beginning and not enough.

A robust and healthy democracy ought to allow individuals from the oppressed and marginalised classes to raise their voices, and help bring equity and equality by shaping the law and policy that governs our country. The dearth of diverse voices and lived experiences in Legislature and Judiciary must be remedied.

It is time that all countries, especially India- which is a proud diverse democratic country, take steps to ensure full participation of all the minority communities- gender, class, religion, caste or sexual orientation, rural urban divide- in all walks of life and their representation at various levels including leadership positions.