Nearly two weeks have elapsed since India witnessed an unprecedented public revolt by four of the senior-most judges of the Supreme Court against the Chief Justice of India. There have been few concrete developments on that front since, but the episode has brought to the forefront the complete and utter lack of diversity in the Indian judiciary.
Thanks to the controversy it is now well-known that the current Chief Justice of India (CJI), Dipak Misra, happens to be nephew of a former Chief Justice of India, Ranganath Misra. The allegations against the CJI related to crucial cases he had transferred to a relatively junior judge of the court, Arun Mishra. A day after the judges spoke out, the Chairman of the Bar Council of India, Manan Mishra, announced the formation of a delegation of judges to address the situation.
And to add to all this, it was reported that another Misra – Nripendra, the Principal Secretary to Prime Minister Modi, had attempted to meet the Chief Justice, presumably to tackle the situation on behalf of the government.
It was hard to ignore the sudden and veritable flood of Mishras in the news!
Mishra is a common surname among Hindu Brahmins from the northern, eastern and central parts of India. This naturally raises the question — are Brahmins over represented in India's judiciary?
The answer is an unequivocal yes according to the President of India, Ram Nath Kovind, who spoke just a few months ago about the “unacceptably low representation of traditionally weaker sections such as Other Backward Classes (OBC), Scheduled Castes (SC), and Scheduled Tribes (ST) in the higher judiciary”.
Data maintained by the Union Ministry of Law and Justice shows that the Collegium, which is responsible for elevating judges to the Supreme Court, has not followed any clear pattern in making its decisions. Either by commission or omission, no SC/ST judge has been elevated to the Supreme Court in the last 7 years.
“If judiciary is not inclusive, their own social conditioning or thinking could get reflected in their judgements,” said Dr. Suraj Yengde, a research fellow at Harvard University who heads the India For Diversity (IDF) initiative. “India’s judiciary is dominated by upper castes and out the 28 SC judges of supreme court, 9 are relatives [of judges or legal luminaries]. This promotes favouritism and nepotism”.
The issue of under-representation of lower castes in the judiciary has been raised in Parliament and the National Commission for Scheduled Castes has also stated in no uncertain terms that “a firm policy of reservation is the only remedy”. It also held that “there is nothing in the constitution to support the stand of the government withholding reservation from judiciary. ”
And yet, the government has failed to take any action in this regard. The reason has to do with the widespread mischaracterisation of the purpose of reservations. “The notion has been created that reservation means awarding quota to non-deserving candidates, which is not true,” said Dr. Yengde. “Reservation means diversity. It brings representation and inclusion to a society as diverse as India”
The fact is, a level playing field in India has come to mean one in which savaranas get most of the pie under the guise of merit. This is precisely why fields which are not covered by reservation have no representation from the OBCs, SCs, and STs who represent more than 80% of India's population.
It remains to be seen how the battle between the Chief Justice and his fellow judges plays out. But the crisis has exposed the elephant in the courtroom, and that is one thing we can be thankful for.