Higher judiciary suffers from Diversity-deficit

Higher judiciary suffers from Diversity-deficit

Why in the news?

A Parliamentary committee report has reported that the higher judiciary suffers from diversity deficit as the representation of SCs, STs, OBCs, women and minorities are below the desired levels.

Observations of the Parliamentary Committee report:

1. 1. 1. 1. A declining trend has been observed in the representation of all marginalized sections of the Indian society.
         2. The representation of SCs, STs, OBCs, women and minorities are below the desired levels.
         3. The representation in the higher judiciary is not reflective of the social diversity of the country.

Representation in the Supreme Court:

1. The first judge of Supreme Court from the Scheduled castes (SCs) and Other Backward Classes (OBCs) community were appointed only in 1980, 30 years after independence.
2. The first women representation in the Supreme Court happened in 1989, 39 years since the existence of the Supreme Court.
3. The Current strength of 35 judges in the Supreme Court consists of nearly 50% judges from the upper caste Hindus and disproportionate representation to other sections of the society – 3 women judges (the highest so far), 1 Muslim, 1 Christian, 1 Parsi and 1 Scheduled Caste judge have been appointed.
4. There has been no judge from the Scheduled Tribe (ST) community appointed till date.

Lacunae in the Constitution:

Essential qualifications to be appointed as a judge of the Supreme court:

1. A judge of one High Court or more (continuously), for at least five years, or
2. An advocate there, for at least ten years, or
3. A distinguished jurist, in the opinion of the President, is eligible to be recommended for appointment, a judge of the Supreme Court.

The criteria mentioned is based on the experience in law and age and remains silent on any other preferred eligibility criteria that leads to proportionate representation in the Judiciary.

Need for equal representation in the higher judiciary:

1. To strengthen the trust, credibility and acceptability of the judiciary among its citizens.
2. Institutional marginalization of the weaker sections of the society may lead to denial of the due rights of that particular community.
3. Due representation of women in the judiciary shall act as a
   1. Hallmark of gender sensitive cases to be handled effectively
   2. Inclusion of different points of view
   3. Motivates women of the country to seek justice.

What has to be done?

1. The Supreme Court and High Court collegium should recommend adequate number of candidates from the marginalized segments including women.
2. Proper methodology has to be followed in the collegium to instill transparency and checks-and-balances in the appointment process.
3. The problems of low women advocate in the country due to
   1. Patriarchal mindset and stigmatization of the role of advocates as a male-dominant profession,
   2. factors of age and familial responsibilities making the elevation of women judges from lower courts to high Courts and the Supreme Courts.
   3. No legislation seeking to mandate the representation of women judges.
   4. Vacancies can be used as an opportunity to include reservation.