The representation of diverse communities within India’s constitutional courts bears significant weight on the democratic framework of the nation. This article delves into the concern of Muslim representation in the judiciary, a topic that transcends personal identity and calls for a focus on constitutional obligations rather than a debate framed in binary religious or caste terms. Specifically, the article examines the appointment of judges directly from the Bar among practicing Muslim lawyers, acknowledging that similar patterns likely exist for other minority groups such as Sikhs, Christians, and Dalits. However, this analysis is narrowed to the Muslim community’s representation in constitutional courts, excluding those judges elevated from the district judiciary due to the unique factors such as experience and seniority that influence those appointments.
Indian Muslims have traditionally aligned with secular political parties, expecting equal protection under the law. However, there is a pervasive sentiment that institutional mechanisms fall short in providing this equality. The political and institutional landscape has largely marginalized Muslims, with few visible in political institutions, and those who are present often constrained by organizational discipline from raising critical issues. Such voices are frequently labeled as communal or anti-Hindu when they address core concerns.
Diversity encompassing religion, caste, and social backgrounds is an undeniable aspect of India. The Constitution accommodates minorities, a principle upheld by the Supreme Court in cases concerning affirmative action and judicial appointments. This article specifically scrutinizes the Collegium system, a purportedly apolitical and neutral mechanism for appointing judges to constitutional courts.
In a recent parliamentary session, a member highlighted the exclusion and discrimination evident in the failure to appoint judges from various communities, including religious minorities. The member emphasized the government’s duty to ensure proportional representation. However, the government typically responds by noting its limited role, as the appointment process is initiated by the judiciary itself. The senior judges of the High Courts and the Supreme Court have the prerogative to recommend candidates, and it is within their power to consider diversity when doing so.
An examination of High Court data reveals a stark absence of Muslim judges appointed directly from the Bar in 14 High Courts. For instance, the Delhi and Calcutta High Courts, with 32 and 39 judges appointed respectively, have no Muslim representation. This pattern persists across several other High Courts, including Gujarat, Madhya Pradesh, and Punjab & Haryana, among others. Conversely, a few High Courts such as Patna, Telangana, and Rajasthan each have a single Muslim judge elevated from the Bar.
The Supreme Court of India, with a current working strength of 34 judges, includes only one Muslim judge and has not seen a Sikh judge in recent times. Landmark Supreme Court judgments, such as the First Judges Case (1981) and the Second Judges Case (1993), underscore the judiciary’s role in socio-economic justice and the necessity for diverse representation.
Judges recommending appointments are aware that names from minority communities often face delays or rejections at the government level. A viable approach would be to recommend more candidates from these communities to mitigate government roadblocks. The talent pool of eminent Muslim lawyers is substantial, suggesting a lack of will rather than a lack of qualified candidates.
Given the judiciary’s influence on social and political issues, diversity in judicial appointments is crucial. This is distinct from advocating for reservations in the higher judiciary. Dr. B.R. Ambedkar cautioned that the success of democracy depends on adherence to constitutional methods and the nature of those in power. The current system, in allowing for the exclusion of certain communities, highlights the need for a reevaluation of how judges are appointed, particularly when such decisions rest with the highest-ranking judges in constitutional courts.
MR Shamshad is a Senior Advocate practicing before the Supreme Court of India.
