The appointment of Indu Malhotra to the Supreme Court has rekindled the debate surrounding the ‘representativeness’ of the judiciary. She is only the seventh woman to be appointed to the Supreme Court in the seven decades of its existence, and the first woman to be elevated from the Bar to the Court.
In India, the representation of socially-marginalised groups in both the higher and the lower judiciary remains dismal. Only about 10% of the judges in the high court are women. The percentage of women judges in the lower judiciary is pegged at 27%. When it comes to caste representation, the numbers fall more drastically. It is estimated that other backward classes constitute just 12% of the lower judiciary, which is significantly lesser than their actual population share estimated to be close to 40%. Dalits constitute 14%, which is a bit lesser than their population share of 16.6% as per the 2011 Census. Only judges belonging to the Scheduled Tribes constitute 12% of the lower judiciary figure, which is higher than their estimated population share of 8.6%.
Representativeness of public institutions, including the judiciary, is seen as an important goal in a constitutional democracy. A judiciary which reflects the composition of the society it serves enjoys a greater degree of legitimacy, as it signals an equality of opportunity for marginalised groups. However, systemic barriers prevent the entry of such persons into these institutions. To remedy this, certain countries have taken up a variety of measures.
In the UK, for example, a ‘Judicial Diversity Taskforce’ was set up to oversee the implementation of recommendations to make the judiciary more inclusive. Separately, South Africa has a constitutional mandate to maintain a reflection of its social composition in its judiciary, which includes both racial and gender composition.
In India, however, the conversation around improving judicial diversity does not transcend the question of reservation. For instance, a 2011 report published by the National Commission for Scheduled Castes recommended affirmative action as the only way to fix the lack of representation in the higher judiciary. But there is little or no empirical evidence regarding the relative success of such a policy.
In fact, the lack of empirical evidence has prevented policymakers to even fully comprehend the problem. There are no efforts to regularly compile and publish data on the social, economic and professional backgrounds of judges in either the higher or lower judiciary. Data collection, if at all, happens very unsystematically. It was only in response to questions asked in parliament in November 2017, that some data on the overall proportion of women judges in the lower judiciary was compiled and made public. Even this data was incomplete as it had not been compiled for all states. The Union minister of law and justice also clarified that this was not a regular exercise for the Central government.
Therefore, even before we debate the relative merits of policy measures to improve judicial diversity, we need hard evidence. While statistics alone cannot yield appropriate reform suggestions, they are a necessary aid for any measure or policy to be designed or evaluated. Regular publication of such statistics would additionally help maintain a sustained public pressure around the issue.
One way forward is for the Ministry of Law and Justice to publish ‘Annual Diversity Statistics’ for the higher and lower judiciary. This is similar to what is done in the UK by the Courts and Tribunal Service, where statistics are published on an annual basis on April 1 each year. This compilation provides a breakdown of gender, ethnicity, professional background and age. Regular, systematic publication of data enables transparency and accountability. Ultimately, such a publication could help in the realisation of a more socially diverse judiciary which might arguably reduce the barriers of access for litigants from marginalised communities.
Urgent efforts are needed to ensure that the judiciary becomes more inclusive. For that, discourse must move beyond token measures. Rather, the government and the judiciary need to invest in more systemic reforms. Publishing diversity statistics could be a significant step forward in that direction.
Diksha Sanyal is a Research Fellow at the Vidhi Centre for Legal Policy where she works on Judicial Reforms in India.