Collegium System Has Not Improved Social Diversity in Higher Judiciary: Law Ministry

In a presentation to the parliamentary panel on law and justice, the ministry said that 79% of all high court judges appointed between 2018 and 2022 were from upper castes.

New Delhi: The Union law ministry has mounted more pressure on the collegium system to appoint judges, telling a parliamentary panel that despite existing for three decades, the system has failed to remedy the lack of social diversity in the higher judiciary.

According to the Times of India, the law ministry told the parliamentary panel on personnel, public grievances, law and justice – headed by BJP Rajya Sabha MP Sushil Modi – that “inequitable representation of backward and minority communities” in the higher judiciary is “evident from the fact” that 79% of all high court judges appointed between 2018 and 2022 were from upper castes.

The ministry added that in three decades, the collegium system has failed to address the issue of “social diversity in higher judiciary, as originally devised by the Supreme Court”, according to the TOI report.

The ministry said that out of 537 appointments to high courts in the five-year period, 424 (79%) were from the general category (upper caste), 57 (11%) were from Other Backward Castes (OBCs), 15 (2.8%) were from Scheduled Castes (SCs) and 7 (1.3%) were from Scheduled Tribes (STs). The ministry said that the castes of 20 judges who were appointed could not be ascertained, according to the newspaper.

The report said that the government specifically flagged the “discrimination” against the OBC communities, saying that while they make up more than 35% of the country’s population, they accounted for only 11% of appointments.

“It is the primary responsibility of the SC collegium and the HC collegiums to address the issue of social diversity and social justice in the process of appointment to the constitutional courts,” the law ministry told the panel.

In the winter session of parliament, law minister Kiren Rijiju said that his ministry has received various ‘representations’ on the lack of transparency, objectivity and social diversity in the collegium system. In the months preceding the parliament session, he had repeatedly criticised the system for perceived similar faults. The top court has pushed back on the criticism, admitting that though the system may not be perfect, it is the law of the land and must be followed.

“The government appoints only those persons as judges of Supreme Court and high courts who are recommended by the SC collegium,” the ministry told the parliamentary panel. It added that there is no provision for reservation in judicial appointments and has therefore been requesting the chief justices of high courts and the chief justice of India to consider suitable candidates from marginalised communities to ensure social diversity.

According to the news agency PTI, the ministry also raised the National Judicial Appointments Commission (NJAC), which the Narendra Modi government had established to replace the collegium system. The ministry said that NJAC had proposed two eminent persons as its members, including one who shall be nominated from the SC, ST and OBC communities or from the minorities or a woman – in an apparent suggestion that this would remedy the lack of social diversity. The top court struck down the NJAC Act, finding it unconstitutional.

Meanwhile, The Print reported that the panel will take up issues such as the need for judges to declare their assets in the future.