Higher judiciary must reflect richness of India’s diversity, secular values

"As far as minorities are concerned, I have no hesitation in saying that a different kind of mentality works, that a young person from a minority will not be appointed. It is not in the mind of judges but at government level,” said Justice Govind Mathur, who retired as Chief Justice of Allahabad High Court last month, while interacting with the media.

Justice Mathur’s remarks deserve serious consideration. The Supreme Court has a sanctioned strength of 34 judges, including the Chief Justice of India. The apex court, as of now, has only one Muslim judge, one woman judge, one Parsi judge, one Christian judge and one Dalit judge; but it has no Sikh, no Buddhist, no Jain and no Adivasi judge. It reflects the grim state of the under-representation of minorities in the apex court.

The Supreme Court has had several brilliant Muslim judges ever since its establishment and they have delivered thousands of landmark judgments that have enriched the discourse of justice and legal scholarship. Out of them, four judges, namely Justices M. Hidayatullah, M.H. Beg, A.M. Ahmadi and Altamas Kabir graced the office of the Chief Justice of India. Justice Hidayatullah served all three high constitutional offices--Chief Justice of India, Vice-President and the Acting President of India.

Other Muslim judges of the Supreme Court were: Saiyed Fazl Ali, Ghulam Hasan, Syed Jafar Imam, Syed Murtaza Fazl Ali, Baharul Islam, V. Khalid, Fathima Beevi, Faizanuddin, S. Sagir Ahmad, S.S.M. Qadri, Aftab Alam, M. Y. Eqbal and F.M. Ibrahim Kalifulla. Presently, Justice Abdul Nazeer is the only Muslim judge in the Apex Court.

At present two high courts have Muslim Chief Justices-Justice Kureshi in Tripura and Justice Mohammad Rafiq in Madhya Pradesh, and both of them will retire next year. There is a general belief among the legal fraternity, if not the general public, that the Supreme Court must maintain a diversified bench representing all sections of society. Let me throw some light on this issue of great public importance.

Muslims constitute around 15% of India’s total population, but their representation in the higher judiciary is negligible. As stated earlier, the Supreme Court has only one Muslim judge, and there are only two Muslim Chief Justices in the high courts. There are not more than a dozen Muslim judges in the high courts across the country. The lack of diversity creates a legitimacy crisis for our judicial system. The time has come when all the essential stakeholders of the legal profession should consider taking necessary measures to give a fair representation to the minorities, especially to Muslims, in the SC and the high courts.

A few years ago, former Chief Justice of India K.G. Balakrishnan expressed his concern on this issue in these words: “It is not a question of their rights being denied, it is a question of proper representation of all religions, castes, and regions at the apex court. In many countries, special provisions are made to ensure the proper representation of all regions, religions, and communities at the national court.”

The Supreme Court collegium and the central government need to be on the same page to take serious note of these thought-provoking words of a former CJI. The constitutional courts decide several matters relating to Personal Law and minorities, and a bench comprising minority judges can adjudicate them more effectively.

In addition, it would also strengthen public trust and the secular credentials of the judiciary. For the courts of justice to command legitimacy, it must reflect the richness of India’s diversity and secular values. And the collegium has a responsibility to strike a balance in judicial appointments.

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Since September 2019, there has been a deadlock in the Supreme Court collegium, which has stalled appointments to the Supreme Court Bench. The last time a judge was appointed in the Supreme Court was in September 2019, during the then CJI Ranjan Gogoi’s tenure. Justice Bobde assumed the office of CJI on November 18, 2019 but he could not make his colleagues to agree on even a single recommendation for appointment.

Justice Bobde is possibly the first CJI who could not recommend even a single appointment of a candidate for the Supreme Court judgeship.

He did call several meetings of the collegium to discuss appointments to the Supreme Court, but those meetings ended in a deadlock, without any consensus emerging that could lead to a recommendation. Seniority and high courts’ representation play a significant role in selecting the judges, and it is learned that some collegium members were not in favour of relaxing the seniority norms.

The CJI is the head of the collegium, but he cannot bypass the collegium members. He has to carry all of them with him for deciding the names of judges unanimously. If two or more collegium members oppose a candidate’s name proposed by the CJI, such a name cannot be approved at all. Thus, consensus matters a great deal in the decision-making process of the collegium.

Under the leadership of the present CJI Ramana, now all the collegium members have to engage with each other to build a consensus. Individual disagreements over some names are inevitable, but care must be taken that the institutional credibility of the Supreme Court does not suffer. Given the background, the Supreme Court collegium led by CJI Ramana is expected to consider giving adequate representation to all minorities including Muslims on the benches of the Supreme Court and the high courts.

The collegium’s sole focus should be on choosing secular, brilliant and liberal judges from diverse backgrounds like women, minorities, Dalits, Adivasi etc. The representation of minorities in the higher judiciary matters a great deal to infuse the confidence of the minorities in the institution of judiciary.

Let me conclude with the words of Lady Brenda Hale, former President, United Kingdom’s Supreme Court: “People should be able to feel that the courts of their country are their courts, they are to serve the whole community, rather than the interest of a narrow and privileged elite. They should not feel that one small sect of society is dictating to the rest. These days we cannot take the respect of the public for granted; it must be and be seemed to be earned.”

(The writer is a Supreme Court Advocate. Views are personal)