The need for diversity in the judiciary

UPSC Study Note — The Need for Diversity in the Judiciary

1. At a Glance

• Diversity in the higher judiciary refers to adequate representation of women, Scheduled Castes (SC), Scheduled Tribes (ST), Other Backward Classes (OBC), minorities, and regional linguistic groups among judges of the Supreme Court and High Courts.
• India's collegium system — an opaque, judge-driven appointment mechanism — lacks any statutory mandate for diversity, making under-representation a structural rather than incidental problem.
• The topic sits at the intersection of GS-II (Judiciary, Constitutional Bodies, Social Justice) and is a live policy debate, making it high-probability for both Prelims and Mains 2026.
• Since 2018, SC judges constitute ~3% and ST judges ~1.5% of High Court appointments — far below their share in the population. [S1]

2. Why in the News

• February 2026: P. Wilson, senior advocate and Rajya Sabha MP of the Dravida Munnetra Kazhagam (DMK), introduced a private member Bill to amend the Constitution to: (i) institutionalise diversity in judicial appointments, and (ii) establish regional benches of the Supreme Court. [S2]
• The Bill reignited debate on whether the collegium, insulated from elected-government interference, has also become insulated from democratic accountability on representation.
• Discussions on delimitation and regional political assertion (Tamil Nadu, southern states) have amplified the demand for regional SC benches as an access-to-justice issue. [S2]

3. Background & Evolution

4. Core Static Facts

Constitutional provisions:

• Article 124 — SC judges appointed by the President after consulting the CJI; no diversity mandate. [S2]
• Article 217 — HC judges appointed by President after consulting the CJI, Chief Justice of the HC, and the State Governor. [S2]
• Article 130 — Seat of the Supreme Court is Delhi, or such other place(s) as CJI with approval of Central Government may appoint. (Basis for regional bench demand.) [S2]
• No reservation exists in higher judiciary appointments; collegium system has no statutory diversity criterion. [S1]

Collegium composition:

• Supreme Court appointments: CJI + 4 senior-most SC judges. [S1]
• High Court appointments: CJI + 2 senior-most SC judges. [S1]

Representation data (post-2018 appointments):

• SC judges in HCs: ~3% [S1]
• ST judges in HCs: ~1.5% [S1]
• Women representation: Historically below 15% across HCs; first woman SC judge — Justice Fathima Beevi (1989).
• OBC/minority representation: Not tracked systematically; no statutory requirement.

NJAC structure (struck down):

• CJI (Chairperson) + 2 senior-most SC judges + Union Law Minister + 2 eminent persons (one from SC/ST/minority/woman category).
• Enacted: 99th Constitutional Amendment Act, 2014 and NJAC Act, 2014. Struck down: 2015. [S1]

5. Multi-Dimensional Analysis

Legal / Constitutional

• Articles 124, 217, 130 govern appointments and SC seat; none mandates diversity. [S2]
• Three Judges Cases created a judge-made appointment system outside explicit constitutional text. [S1]
• NJAC's inclusion of eminent persons (one from marginalised groups) was the only prior attempt to mandate representational diversity — nullified in 2015. [S1]
• Private member Bill, if passed, would need a constitutional amendment (minimum special majority under Article 368).

Social / Equity

• India's population: SC ~16.6%, ST ~8.9% (Census 2011); HC judicial representation (3% and 1.5%) is a fraction of population share. [S1]
• Absence of diverse judges means lived experiences of marginalised litigants are less likely to inform judicial reasoning.
• Women's representation gap affects interpretation of gender-sensitive laws (POCSO, domestic violence, sexual harassment).

Administrative / Governance

• Collegium proceedings are non-transparent — no public reasoning for selection/rejection; no minutes published.
• Judicial vacancies in HCs: Chronically high (estimated 400+ vacancies at any time), with opaque collegium process blamed for delays.
• Memorandum of Procedure (MoP) governing collegium–government interaction remains un-revised despite SC directions in 2015–16.

Historical

• Independent India's judiciary was initially more diverse at the trial court level (state PSC–driven) than at the apex level.
• Post-1993, the collegium — drawn from the senior Bar of Delhi/Mumbai — has reproduced metropolitan elite networks in appointments.
• Comparative: USA uses Senate confirmation hearings (transparency + accountability); UK uses Judicial Appointments Commission (statutory, independent, diversity mandate).

Geopolitical / Access to Justice

• Southern states (Tamil Nadu, Karnataka, Andhra Pradesh, Kerala, Telangana) are geographically distant from the Delhi-based Supreme Court. [S2]
• Litigants from these states bear disproportionate travel and cost burdens.
• Regional benches (permitted under Article 130) remain un-established despite Law Commission recommendations (multiple reports). [S2]

Ethical / Governance

• Opacity of collegium selection raises conflict-of-interest concerns — judges selecting judges who clerked for them or belong to the same Bar.
• Lack of diversity undermines public confidence in judiciary's impartiality for cases involving marginalised communities.

6. Recent Developments (Last 12–18 Months)

• February 19, 2026: P. Wilson (DMK, Rajya Sabha) introduces private member Bill seeking constitutional amendment for judicial diversity and regional SC benches. [S2]
• 2025: Continued government-collegium standoff over pending HC appointments; Law Minister publicly called for revisiting appointment process.
• 2024–25: Multiple Parliamentary Standing Committee reports flagged under-representation of women and SCs/STs in the higher judiciary.
• 2025: Chief Justice of India (incumbent) acknowledged diversity deficit in judicial appointments in public addresses, signalling collegium openness to broadening candidate pool.
• Ongoing: No MoP finalized between government and collegium since 2015 SC direction — institutional stalemate persists. [S1]

7. Prelims Hooks

1. Article 124 provides for appointment of Supreme Court judges by the President in consultation with the CJI. [S2]
2. Article 130 empowers the CJI (with Central Government approval) to hold SC sittings at places other than Delhi — constitutional basis for regional benches. [S2]
3. First Judges Case (1981): S.P. Gupta v. Union of India — upheld executive primacy in judicial appointments. [S1]
4. Second Judges Case (1993): Established the collegium system; reversed executive primacy. [S1]
5. Collegium for Supreme Court appointments: CJI + 4 senior-most SC judges. [S1]
6. Collegium for High Court appointments: CJI + 2 senior-most SC judges. [S1]
7. NJAC was established by the Constitution (99th Amendment) Act, 2014 — struck down in 2015. [S1]
8. SC representation in High Court appointments since 2018: ~3%; ST representation: ~1.5%. [S1]
9. The NJAC's 6-member composition included: CJI + 2 senior SC judges + Union Law Minister + 2 eminent persons. [S1]
10. First woman judge of the Supreme Court of India: Justice M. Fathima Beevi (appointed 1989).
11. Private member Bill on judicial diversity introduced by P. Wilson (DMK) in the Rajya Sabha, February 2026. [S2]
12. No provision for reservation exists in the higher judiciary (SC/HC) under the current constitutional/collegium framework. [S1]
13. Article 217: HC judge appointment involves consultation with CJI, Chief Justice of the HC, and the State Governor. [S2]
14. Regional benches remain unestablished despite being constitutionally permitted since 1950 (Article 130).

8. Mains Relevance

GS Paper: Primarily GS-II - Syllabus heading: Structure, organisation and functioning of the Executive and Judiciary; Appointment to various Constitutional posts; Separation of Powers. - Secondary: GS-I (Role of Women, Social Empowerment, Caste).

Plausible Mains Question Stems:

1. "The collegium system, while protecting judicial independence, has institutionalised social exclusion. Critically examine, with reference to representation of women, SCs, STs, and regional linguistic minorities in India's higher judiciary." (GS-II, 15 marks)

2. "Discuss the constitutional provisions and judicial precedents governing the appointment of judges in India. Do you think the establishment of regional benches of the Supreme Court will improve access to justice?" (GS-II, 15 marks)

3. "The National Judicial Appointments Commission was struck down to protect judicial independence. But is a judiciary that is not representative truly independent in a constitutional democracy? Examine." (GS-II / Essay, 250 words)

9. Related Topics to Study Next

10. Common Errors / Trap Areas

1. Confusing Articles 124 and 217: Article 124 governs SC judge appointments; Article 217 governs HC judge appointments. HC appointment additionally involves the State Governor — SC does not.
2. NJAC misconception: Aspirants often think NJAC was never enacted — it was enacted (99th Amendment + NJAC Act, 2014) and then struck down in 2015. The collegium was not continuously in force since 1993.
3. Collegium size confusion: CJI + 4 for SC appointments vs. CJI + 2 for HC appointments — frequently swapped in answers.
4. Article 130 scope: Article 130 does NOT mandate regional benches — it merely permits the CJI (with government approval) to hold sittings elsewhere. Regional benches require affirmative executive action, not just constitutional interpretation.
5. Reservation myth: Some aspirants assume reservations apply to HC/SC appointments as they do to government services. They do not — there is no statutory or constitutional provision for reservation in higher judicial appointments.

11. Sources

• [S1] "Rethinking Judicial Appointments: Collegium vs. Commission" — PRS India Blog — https://prsindia.org/theprsblog/rethinking-judicial-appointments-collegium-vs-commission — (Tier 2 / policy research)
• [S1b] "Judicial Processes and their Reforms" — PRS India Report Summary — https://prsindia.org/policy/report-summaries/judicial-processes-and-their-reforms — (Tier 2 / policy research)
• [S1c] "Parliament and Judiciary" — PRS India Discussion Paper (Anviti Chaturvedi, 2016) — https://prsindia.org/files/parliament/discussion_papers/Parliament%20and%20Judiciary.pdf — (Tier 2 / policy research)
• [S2] "The need for diversity in the judiciary" — The Hindu, February 19, 2026 (Rangarajan R.) — https://www.thehindu.com/todays-paper/2026-02-19/th_international/articleGT2FJVQP0-13571901.ece — (Tier 4 / Indian journalism — article excerpt as primary source)

Sources: - Rethinking Judicial Appointments: Collegium vs. Commission - Judicial Processes and their Reforms — PRS India - Parliament and Judiciary — PRS India Discussion Paper - The Hindu — The need for diversity in the judiciary (Feb 19, 2026)