Introduction
In my previous column, I explored the representation of Muslims within India’s constitutional courts. This article shifts the focus to another pressing issue: the representation of backward classes in these judicial bodies. Despite over three decades since the Indian Constitution came into force, the presence of Scheduled Castes (SC), Scheduled Tribes (ST), and Other Backward Classes (OBC) in the higher judiciary remains disappointingly low.
The 1983 Scenario
In 1983, a troubling report was presented to the Parliament by the then Law Minister. Out of nearly 400 High Court judges, only six belonged to the SC category, and none were from the ST category. This trend persisted until the landmark 1993 Second Judges’ Case, which aimed to address the appointment procedure for judges in constitutional courts.
The Second Judges Case (1993)
A nine-judge bench of the Supreme Court convened to deliberate on the appropriate procedure for judicial appointments. This case examined the representation of various castes, communities, and religions. A detailed table was presented, revealing that out of 543 High Court judges as of March 31, 1993, only 12 (2.21%) were from the SC community, and 42 (7.73%) were from the OBC community. Alarmingly, many major High Courts had no representation from SC and OBC communities. Furthermore, only seven ST judges (1.29%) were serving at the time.
Impact of the Collegium System
The Second Judges’ Case formalized the Collegium system, which emphasized merit while ensuring representation from all sections of society. Justice JS Verma, who authored the majority opinion, highlighted the need for “proper representation of all sections of people from all parts of the country.” Despite this, representation remained inadequate in subsequent years.
Post Second Judges Case Developments
By the 2000–2001 period, the 13th Report of the Committee on the Welfare of Scheduled Castes and Scheduled Tribes noted that of 481 High Court judges, only 15 were from scheduled castes and five from scheduled tribes, with none in the Supreme Court. The Committee suggested considering reservations for SC/ST in judicial appointments, a proposal not currently supported by statutory obligations.
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Current Representation Data
As of March 2025, the Law Minister reported that since 2018, out of 715 High Court judges appointed, 22 (3.08%) were SC, 16 (2.24%) were ST, and 89 (12.45%) were OBC. Additionally, 37 (5.17%) belonged to minority communities. This data reflects a slight improvement but still reveals significant underrepresentation.
Analysis and Recommendations
The representation figures for SCs, STs, and OBCs have not significantly improved post-1993. This stagnation suggests that the Collegium system has not fully realized the intentions of the Second Judges’ judgment. The government has disclaimed responsibility, yet the Collegium must act to meet the legitimate expectations for diversity and inclusivity. Ensuring that every ten direct appointments include at least one SC, one or two OBCs, one Muslim, and one from Sikh or Christian communities, with appropriate representation of women, could be a step forward.
Conclusion
While replacing the Collegium system is not necessarily the answer, introspection and reform within the existing framework are essential. The Collegium must enhance its selection and appointment processes to be more fair, representative, and transparent.
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MR Shamshad is a Senior Advocate practicing before the Supreme Court of India.
The author acknowledges the assistance of Advocate ZR Karimi.
