Inclusive Judiciary: A Manifestation or Reality

“Diversity does not lie in alienation but in inclusiveness of the genders and the communities.”

Introduction

Epitome of diversity, India is world’s largest democracy, with the concept of rule of law, equality, and equal representation. However, the question here is not whether the Indian judiciary is considered inclusive to an extent where it provides equal access to justice to all, regardless of their socio-economic status? The matter under consideration is whether such inclusiveness encompasses equal representation of all in the judicial organ or not?

Woefully these questions need no pounder as the trajectory of seven decades explicitly portrays the uneven and prejudiced judicial appointments, excluding the marginalised group and fraught by upper caste patriarchal supremacy.

Women in judiciary: Access to equal opportunity is a basic human right. But the same is not extended to women in the upper echelons of judiciary. Since 1950, the Supreme Court has encountered only 11 women, first being Fathima Beevi in 1989. Even though the gender ratio in India slightly favours females, but their representation in judiciary is less than 14%¹ with no female Judges in many High Courts.

Religious minority: Despite having a sizable share of nearly 15% in the population of India, Muslim representation in judiciary is alarmingly low. The appointment deficit exists for other religious minorities like, Zoroastrians, Christians, etc.²

Caste and Indian legal system: 79% of all High Court Judges appointed in the past five years (2018 to 2022) come from upper elite castes, while the proportion of SCs, STs, and other backward classes never exceeded 10%. In fact, the first appointment of a Dalit Judge in the Supreme Court occurred in 1980 and the second such appointment did not happen until 1989. The tribal community had no representation until 2002.³

LGBTQ+ community: Despite the portion of Section 377⁴ has been struck down, there still exists homophobia and underrepresentation of LGBTQ+ in the judiciary. Until now the social morality overshadowed constitutional morality and the systemic oppression at the behest of cisgender society is prevalent against the queer community. The transphobic gender binary outlook is omnipresent and Indian judiciary is no exception with only one LGBTQ+ community Judge “Joyita Mondal” in 2017.⁵

Specially abled and their skewed inclusion: Equality for all includes disabled. Therefore, they must feel included not just for the sake of equal representation in the court but on the Bench. It is unfortunate that till date there has been no disabled Judge in the Supreme Court.

Alongside the abovementioned categories there might be many others in the community facing “intersectional discrimination” yearning, even if not for equal outcome but surely for equal opportunities and representation.

Analysis

Since the abysmal low representation of ostracised communities has factually been established the next step is to dissect the eminent catalyst behind this non-inclusion.

Gender stereotype: “She aspires to be a lawyer, but her father replied, it is a patriarchal profession, you cannot sustain it. Rather be a teacher. Society will respect you.” This is gender stereotype lurking in the 21st century. From not opting law as a career to not being treated equally in the career, “female” as a gender loses a voice towards representation. Very few thrive in the thorn but at the end faces the guerre of aggressive masculinity in the workplace. The situation is same for LGBTQ+, who are perceived as an “alien” not fit for society in general.

No reservation policy: The basic concept of reservation is to provide affirmatively more representation for the historically disadvantaged groups, on that line many States like Bihar had reservation policy for women and other communities in the lower judiciary. However, this concept is missing in the higher judiciary which to some extent decreases the chance of representation for many underrepresented communities.

The author believes that reservation policies might assist diversification of judicial framework to a greater extent by giving fair chances to not so represented communities in India.⁶

The concept of leaking pipeline: Female Judges are not exempt from the phenomenon called “leaking pipeline ”, which refers to the tendency of a large number of women to leave their jobs midway to better accommodate the needs of their families. These factors influence the promotion ration of female Judges from subordinate court to higher judiciary.⁷

Article 233: Regardless of what Article 233 of the Indian Constitution⁸ states, the Supreme Court in a case upheld that, “in order to be appointed as a District Judge, a person must have seven or more years of continuous experience as an advocate”.⁹ This interpretation is a disqualifying criterion to many. To expound, many women advocates may not meet this requirement due to intervening commitments of marriage and motherhood. Since present India does not accommodate “sex reassignment surgery” (SRS) and hormone therapy as a ground for medical leave, it may potentially lead to dilemmatic situation for transgender communities. What about mental health break and post-treatment break for disabled communities. For them, this interpretation tarnishes the hope for a better future.

Potential pool dilution: Due to many stereotypes, social stigma and patriarchal hegemony, the Bar has a dearth of female and other marginalised community lawyers. Since the notable number of higher judiciary Judges are elevated from the Bar to the Bench and not from lower judiciary. The overall pool of Judges suited for such appointment gets diluted.

Lack of infrastructure: Many High Courts lack gender specific restrooms. Even if it is there, basic hygiene is missing. There are no breastfeeding areas or crèche facilities. Let alone the infrastructure of many High Courts is not disabled friendly. All these issues might appear irrelevant, but it has an unspeakable impact on inclusivity.¹⁰

Harassment and sexist remarks: The issue of prejudice is not limited to gender/disabled insensitive design of the courts. It includes harassment and sexist remarks, which many a time goes unnoticed giving it a form of legitimacy. These issues are not advocating tactics but an attack on the integrity of the individual. For instance, abusing, harassment and rape threats to a female Judge by a male advocate showcase the misogynist work environment that negatively affect inclusive representation.¹¹

Collegium system or an old boy club: Appointment in higher judiciary, through collegium system is opaque and lacks transparency. There exist no predetermined eligibility criteria and formal selection procedure. Unlike many democratic nations like South Africa and America even the collegium itself lack plurality and henceforth attract allegations of bias and nepotism.

Why diversity in the Bench is necessary

The role of higher judiciary is not limited to dispute resolution, but it is highly obligated to scrutinise policies, ensure good governance and establishing rule of law. Hence, it should reflect diversity in all forms, not limited to equal representation but also in rendering justice. A diverse legal system brings in varied perspectives and leads to more informed and inclusive judgment delivery mechanism. As judicial behaviour is heavily influenced not only by gender, but also by life experiences of marginalisation, discrimination, and dedication to social change. When a person from an upper caste makes a ruling on matters pertaining to caste minorities, their understanding of the degree of ostracism experienced by these individuals is often limited and the whole judgment delivery mechanism may fail to render full justice.

However, a diverse Bench fosters better representation from downtrodden community by developing public confidence, trust, and a sense of belonging. The presence of Judges from varied communities provides democratic legitimacy to the system and supports the subjugated voice of all. It makes the whole legal system fair yet sensitive and ensures better courtroom experiences for the parties under consideration.

To substantiate, in State (NCT of Delhi) v. Pankaj Chaudhary¹², Indira Banerjee, J. declared that even if a woman is sexually active, it cannot be assumed that she has loose moral character, and she still has the right to decline sexual activity. This ruling differs from previous case of Raja v. State of Karnataka¹³, where male Judges assumed that women who engage in sexual activity are of loose character, despite similar circumstances.

Not to mention, inclusive judiciary tends to mend the monolithic and homogeneous viewpoint of the society and would eventually trigger member of all the communities to seek, aspire and flourish in this profession, awakening a scope for inclusive judiciary.

Criticism

One may point out that the end goal of judiciary is to render justice and inclusivity has no role to play. However, as a society we have to understand that the end goal of judiciary is not judgment delivery but improvisation of society through the judgment and to achieve that sensitivity, inclusivity, empathy is needed.

Moreover, the concept of an inclusive judiciary has different interpretations, with some arguing that judicial independence is crucial. There is a misconception that Judges from marginalised communities may be biased towards their own group, but there is no evidence to support this. In fact, such Judges may be more likely to avoid displaying bias. The dissenting opinion of Justice Indu Malhotra, J. in Sabarimala case¹⁴ and Abdul Nazeer, J. opinion in Ayodhya judgment is explicit example.¹⁵

Foreign legal reforms and India

The lack of inclusive judiciary is a global looking for an urgent solution. There are only a few countries like New Zealand, with gender-balanced judiciary. However, unlike India, many countries are all geared up to resolve this issue through different routes. On. One such example is the UK, wherein they have established a five year plan and a “judicial diversity taskforce” for proposing and supervising a framework that aims to create an inclusive judiciary. Similarly, India can also draft a well- scrutinised plan to resolve the present disparity.¹⁶

An inspiration can also be drawn from South Africa, as they have a constitutional obligation to ensure that their judiciary reflects the country’s social makeup, which encompasses both gender and race representation.

Like the Canadian legal system, a government “wide, open and merit-based appointments process” can be incorporated in India to ensure gender parity and inclusion of people from indigenous group.

Conclusion and suggestions

“Diversity is a hallmark of effective institutions.”

As an institution with a significant impact on the lives of Indians, it is necessary for the judiciary to reflect the diversity of the country. While equal representation is a necessary goal, it is not enough on its own. Addressing systemic barriers and promoting an environment of equality and mutual respect is crucial. Everyone should have a fair opportunity for judicial opportunities based on their skills and abilities, regardless of their background.

While the Government has taken steps towards creating a more inclusive judiciary through initiatives like ” Sensitisation Module for the Judiciary on the LGBTQIA+ Community” which aims towards educating Judges, Magistrates, and judicial personnel in India about the LGBTQIA+ community. An attempt had been made to increase women representation in the higher judiciary. The presence of three female Judges in the Supreme Court with Justice Nagarathna in line to become the country's first woman CJI in September 2027 is little such proof.

While the Government has introduced measures to promote diversity in the judiciary, including a “Sensitisation Module for the Judiciary on the LGBTQIA+ Community” to educate judicial personnel about the LGBTQIA+ community, and efforts to increase the representation of women in higher judiciary. However, there is still a long way to go. The ambit of inclusivity needs expansion. The lack of reservation policies and centralised diversity data regarding the judiciary is a hindrance that needs urgent attention. The collegium system needs revision to ensure transparency. Gender and disabled- friendly infrastructure need to be developed across the nation. Any form of homophobic or sexist remarks, ableism and misandry must be stringently reprimanded.

Also elevating individuals from all communities as Judges and invoking Article 124(3)(c)¹⁷ for the appointment of distinguished jurists are further steps that can be taken for informed and inclusive precedents. To add, the appointment of Advocate Saurabh Kripal as Judge will foster the ideal goal of diverse judiciary, boosting the confidence of other such people to open up about their sexual orientation both in the legal fraternity and across India.

Lastly, it is important to put these observations into perspective and work towards creating a judiciary that truly represents the diverse population of India. Having a more diverse judiciary is an end; a goal in itself, and worth pursuing for its own sake.

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