After Reading This Article You Can Solve This UPSC Mains Model Question:
“Judicial independence and judicial diversity are not contradictory but complementary constitutional values.” Examine in the context of judicial appointments in India. 250 Words, 15 Marks (GS-2, Polity and Governance)
Context
- A Private Member’s Constitutional Amendment Bill, recently introduced by a memberber of Rajya Sabha party and senior advocate P. Wilson, has brought renewed attention to the need for diversity in judicial appointments and the establishment of regional benches of the Supreme Court.
- This initiative addresses longstanding concerns over the collegium system‘s failure to reflect India’s social mosaic, including underrepresentation of Scheduled Castes (SC), Scheduled Tribes (ST), Other Backward Classes (OBC), women, and religious minorities.
Background: Constitutional Provisions on Judicial Appointments
The Indian Constitution establishes a framework for judicial appointments that balances executive and judicial roles, evolving through judicial interpretation to prioritize independence.
- Article 124: Supreme Court judges are appointed by the President after consulting the Chief Justice of India (CJI), emphasizing judicial input.
- Article 217: High Court judges require consultation with the CJI, High Court Chief Justice, and State Governor, ensuring multi-stakeholder involvement.
- Article 130: The Supreme Court’s seat is in Delhi, but the CJI can designate other places with central approval, enabling regional benches without amendment.
- Article 16: Provides equal opportunity in public employment and reservations, a principle extendable to judiciary via amendment for social representation.
Evolution of the Appointment Process: The Collegium System
1. Historical Development of the Collegium System
The collegium system emerged as a judicial safeguard against executive overreach, transforming appointments from an executive-dominated process to one led by the judiciary. Initially, appointments were executive-led post-consultation, reflecting the framers’ intent, but judicial interpretations reshaped this framework.
- Pre-1980s: Appointments were executive-led post-consultation, as per the original constitutional design.
- First Judges Case (S.P. Gupta v. Union of India, 1981): Upheld executive primacy, citing accountability to the people.
- Second Judges Case (Supreme Court Advocates-on-Record Association v. Union of India, 1993): Overturned the first; established collegium comprising CJI + four senior-most Supreme Court judges for SC appointments and CJI + two senior judges for High Courts, prioritizing judicial independence.
- Third Judges Case (1998): Expanded collegium’s role; government objections can be raised once, but reiterated recommendations are binding, cementing judicial primacy.
2. Operational Mechanism of the Collegium System
The collegium system operates with the judiciary at the helm, ensuring insulation from political favoritism but criticized for opacity and nepotism.
- Operational Mechanism: Collegium initiates proposals based on merit, seniority, and performance. Recommendations sent to Central government for clearance; government can seek reconsideration, but finality rests with collegium.
- Current Status (2026): The Supreme Court has returned to its full sanctioned strength of 34 judges, with appointments recommended by the collegium. However, judicial vacancies persist, with 331 vacancies in High Courts in 2024, highlighting delays in appointments under the collegium system.
- Transparency Efforts: The Supreme Court instructed the central government to develop a new Memorandum of Procedure (MoP) for transparency, finalized in 2017 but not adopted by the government.
3. Key Judgments Shaping the Collegium System
Landmark rulings have defined judicial appointments, reinforcing independence while striking down reforms that threatened it.
- Supreme Court vs. Union of India Cases (Judges Cases): Affirmed collegium as part of the basic structure doctrine, safeguarding judicial independence.
- Fourth Judges Case (2015): 99th Constitutional Amendment (2014) created National Judicial Appointments Commission (NJAC): CJI + 2 senior judges + Union Law Minister + 2 eminent persons.
- Supreme Court invalidated it (5:0 verdict) as it violated judicial independence (basic structure), citing executive veto powers.
- Rationale: Executive dominance via Law Minister and non-judicial members compromised primacy; reverted to collegium..
About the Private Member’s Bill seeking Diversity in Indian Judiciary
The Bill seeks to mandate diversity and accessibility without undermining merit.
- Diversity Mandate: Proportional representation for SC/ST/OBC, women, and religious minorities in Supreme Court and High Court appointments, reflecting population shares.
- Timeline: 90-day cap for Centre to notify collegium recommendations.
- Regional Benches: Establish in Delhi (principal), Kolkata, Mumbai, Chennai; full jurisdiction except constitutional matters (reserved for Delhi’s Constitution Bench).
- Rationale: Improves access to justice, reduces Delhi-centric pendency (>90,000 cases pending in the Supreme Court as of January 2026), addresses geographic barriers.
Why There is a Need for Diversity in the Judiciary
1. Addressing Chronic Underrepresentation
- 2018-2024 High Court appointments (715 judges): 22 SC, 16 ST, 89 OBC, 37 minorities (~23% marginalized).
- Supreme Court: Only 11 women (~8% of 287 total); no SC/ST women; one religious minority (Justice Fathima Beevi).
- Direct elevations from Bar: 9 men vs. 1 woman (Justice Indu Malhotra).
2. Structural Barriers to Institutional Advancement
- Late appointments: Women judges are often appointed at a relatively late age, restricting their tenure and limiting their ability to attain seniority.
- Short tenures: Several women judges have served for fewer than three years, diminishing their influence in the Court’s institutional processes.
- Limited opportunities: The absence of systematic efforts to address these barriers perpetuates a cycle of underrepresentation.
3. Implications for Equitable Justice Delivery
- Narrow Viewpoints: Homogenous benches overlook marginalized realities (e.g., Hathras rape case dismissed Dalit woman’s testimony vs. 2012 Delhi gangrape acceptance).
- Democratic Deficit: Judiciary as “guardian of democracy” lacks credibility without reflecting society; contrasts with reservations in Parliament/public services.
- Institutional Legitimacy: Diverse judges enrich reasoning (e.g., Justice Nagarathna on gender sensitivity; Justice Leila Seth on inheritance rights).
4. Critiques of the Collegium System’s Selection Criteria
- Nepotism and Opacity: In the absence of an enforceable Memorandum of Procedure, the selection process is seen as opaque. While transparency was briefly prioritized under CJI Dipak Misra, the practice of disclosing detailed resolution reasons has not been consistently sustained.
- “Merit Myth” and Social Capital: The argument for “merit” is often used to oppose diversity. Sociologists like Satish Deshpande argue that “merit” often masks caste privilege rooted in elite education and networks.
- Yale professor Daniel Markovits describes a “Meritocracy Trap” where rules are rigged in favor of the privileged.
- Dr. B.R. Ambedkar similarly warned that merit is rendered useless if an individual is denied the social assets associated with their status.
- Gender Blindness: Because the Collegium is composed of the senior-most judges (who are predominantly male), gender considerations often remain at the margins. This limits the depth of perspectives available in cases concerning family law, gender justice, and workplace harassment. For instance, women underrepresented in Collegium, limiting diverse perspectives in gender justice cases (e.g., family law, workplace harassment).
Global Best Practice
- United Kingdom (Judicial Appointments Commission): The UK uses an independent commission comprising judges, legal practitioners, and lay members. This ensures that the selection process is not an exclusive judicial “silo” and actively promotes diversity through a statutory duty.
- South Africa (Judicial Service Commission): The South African model is a global benchmark for transparency. It includes representatives from the legislature, the executive, and the legal academy. Crucially, the South African Constitution mandates that the judiciary must reflect the racial and gender composition of the country.
- Kenya (Public Interviews): Kenya conducts public televised interviews for judicial candidates. This level of transparency builds immense public trust and ensures that social sensitivity is tested alongside legal knowledge.
Way Forward: Reforms for an Inclusive Judiciary
Targeted interventions can embed diversity while preserving independence, aligning with constitutional principles.
- Judicial Self-Reform: Collegium voluntarily prioritizes diversity; publish annual caste/gender data for transparency.
- Constitutional Amendments: Extend Article 16 logic to Articles 124/217; mandate proportional representation via 104th Amendment-style provisions.
- Revive NJAC Broadly: For India, a revived commission should:
- Include a Diversity Secretariat to identify and mentor talent from marginalized backgrounds.
- Maintain a Judicial Majority to preserve independence, but include Eminent Lay Persons to provide social context.
- Institutionalize Public Consultations or feedback loops from the Bar Council before final recommendations.
- Regional Benches: Implement via Article 130 as recommended by Law Commission/Parliamentary panels; start with Kolkata, expand.
- Legislation: Enact Judicial Diversity Act for social background as appointment criterion.
- Data Transparency and Public Accountability: Mandate annual, machine-readable disclosures by the Law Ministry and judiciary on caste, gender, minority, and intersectional composition of appointments; integrate this data into RTI for civil society oversight; use evidence to pinpoint recruitment gaps and adjust policies dynamically for proportional diversity aligned with India’s demographics.
- Strengthening the Lower Judiciary as a Pipeline: Enforce merit-cum-diversity recruitment in subordinate courts with targeted outreach, reservations in promotions, and scholarships/mentorship programs for women, SC/ST/OBC candidates; fill vacancies swiftly to build experience for elevation; create structured talent pools from lower judiciary to feed higher courts with representative judges.
- Cultural and Institutional Transformation: Introduce mandatory judicial education modules on gender justice, caste dynamics, intersectionality, and lived realities of marginalized groups; adopt inclusive court practices like specialized benches and trauma-informed procedures; foster a cultural shift viewing diversity as essential to constitutional equality and legitimacy, moving beyond quotas to systemic inclusion.
Conclusion
As Ambedkar famously noted, “Political democracy cannot last unless there lies at the base of it – social democracy.” Moving toward a representative bench is not a compromise on merit but a fulfillment of the constitutional promise of equality. A judiciary that is diverse in its composition will be more robust in its deliberations and more just in its delivery.
