Diversity and Access in the Higher Judiciary: Constitutional Reform and Institutional Legitimacy
(GS Paper II – Judiciary; Separation of Powers; Constitutional Bodies; Access to Justice)
Context (Introduction)
A private member’s Bill introduced by DMK MP P. Wilson seeks constitutional amendments to mandate social diversity in judicial appointments and establish regional benches of the Supreme Court. The proposal emerges against concerns of under-representation in the higher judiciary and persistent barriers to access to the apex court.
Constitutional Framework and Judicial Appointments
- Article 124: Provides that Supreme Court judges are appointed by the President after consultation with the Chief Justice of India (CJI).
- Article 217: Mandates High Court judge appointments by the President after consultation with the CJI, the concerned High Court Chief Justice, and the Governor.
- Article 130: Provides that the Supreme Court shall sit in Delhi or such other place(s) as decided by the CJI with presidential approval, enabling regional benches without constitutional amendment.
- Original Constitutional Practice: Until the 1980s, the executive enjoyed primacy in appointments subject to consultation.
- Judicial Reinterpretation: Through constitutional adjudication, primacy shifted to the judiciary to safeguard independence.
Evolution of the Collegium System
- First Judges Case (1981): Upheld executive primacy, citing democratic accountability.
- Second Judges Case (1993): Established the collegium system, granting judicial primacy in appointments to preserve independence.
- Third Judges Case (1998): Clarified composition — CJI plus four senior-most judges for Supreme Court appointments and CJI plus two senior judges for High Court appointments.
- Reiteration Principle: If the collegium reiterates a recommendation returned by the Centre, the executive is constitutionally bound to accept it.
- Purpose: To insulate judicial appointments from political interference and protect the Basic Structure doctrine.
NJAC and the Basic Structure Doctrine
- 99th Constitutional Amendment (2014): Created the National Judicial Appointments Commission (NJAC), comprising the CJI, two senior judges, the Union Law Minister, and two eminent persons.
- Fourth Judges Case (2015): The Supreme Court struck down NJAC as violative of the Basic Structure, particularly judicial independence.
- Judicial Reasoning: Executive presence and the ambiguous role of “eminent persons” could undermine decisional autonomy.
- Post-Judgment Reform: Court acknowledged flaws in collegium functioning and sought improvements in transparency through a revised Memorandum of Procedure.
Empirical Gaps in Social Diversity
- SC/ST/OBC Representation: Between 2018 and 2024, only around 20% of judges appointed to the higher judiciary belonged to Scheduled Castes, Scheduled Tribes and Other Backward Classes.
- Gender Imbalance: Women constitute less than 15% of judges in the higher judiciary, despite forming nearly half of India’s population.
- Religious Minority Representation: Less than 5% of recent appointees belonged to religious minorities.
- Merit-Centric Model: Collegium emphasises “merit” without formal diversity benchmarks, leading to criticism of homogeneity.
- Perception of Legitimacy: A judiciary not reflective of India’s social diversity risks weakening institutional credibility in a plural society.
Access to Justice and Regional Benches
- Centralised Seat in Delhi: Supreme Court functioning solely in Delhi creates significant financial and logistical barriers for litigants from southern, eastern and northeastern States.
- Pendency Crisis: As of January 2026, over 90,000 cases are pending before the Supreme Court.
- Law Commission Recommendations (1988 & 2009): Suggested splitting the Court into a Constitution Bench in Delhi and regional Cassation Benches for routine appeals.
- Article 130 Flexibility: Constitution already permits relocation or regional sittings, making reform administratively feasible.
- Federal Sensitivity: Regional benches in Kolkata, Mumbai and Chennai could reduce litigation costs, enhance federal balance, and improve timely justice delivery.
Key Proposals in the Private Member’s Bill
- Proportional Representation Mandate: Seeks due representation to SC, ST, OBC, women and minorities in proportion to population in appointments to Supreme Court and High Courts.
- Time-bound Executive Action: Mandates a 90-day limit for the Central government to notify collegium recommendations.
- Regional Benches with Full Jurisdiction: Proposes benches in New Delhi, Kolkata, Mumbai and Chennai, with constitutional matters reserved for a Constitution Bench in Delhi.
Way Forward
- Judicial Self-Reform: The collegium can institutionalise diversity metrics without compromising merit or independence.
- Revamped NJAC Model: A restructured appointments commission including representatives from legislature, Bar Council and academia — as seen in South Africa and the UK — may provide broader consultation while preserving judicial primacy.
- Transparency Measures: Publication of diversity data, selection criteria and reasons for elevation can enhance accountability.
- Phased Regional Bench Implementation: Pilot one regional bench under Article 130 before national expansion.
- Balancing Independence and Inclusivity: Reforms must preserve judicial independence while enhancing representativeness and accessibility.
Conclusion
The debate over diversity and regional benches is fundamentally about constitutional legitimacy in a vast and diverse democracy. While the collegium has safeguarded judicial independence, empirical evidence of under-representation and persistent access barriers necessitates structural reform. A calibrated approach — protecting the Basic Structure while deepening inclusion and access — can strengthen both institutional credibility and democratic justice.
Mains Question
- “To what extent should the composition of constitutional institutions reflect the social diversity of the society they serve? Critically examine this proposition with specific reference to the Indian higher judiciary.” (250 words)
Source: The Hindu