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Apex court needs more diversity

Prime Minister Narendra Modi assumed office in 2014 and now is in his second term as PM of India. In the last 6 years of his tenure as PM, only one Muslim judge was appointed to the Supreme Court of India.

Armin Rosencranz and Harsh Vardhan Bhati | New Delhi |

In the 1950s Jawaharlal Nehru tried to get Justice Mohammadali Carim Chagla (Chief Justice of the Bombay High Court 1947-58), appointed as chief justice of the Supreme Court, because he wanted a Muslim Chief Justice of India. However, it took until 1968 for India to have a Muslim Chief Justice.

Thirty-six men served on the Supreme Court of India from its inception in 1950 through 1967. Examination of their background reveals that the typical judge was the product of a socially prestigious and economically advantaged Hindu family, and was educated at one of the better Indian universities or in England.

They spent almost 20 years in private law practice before the high court in their home state and then served on that same high court. There has been a ‘Muslim seat’ at the Supreme Court since its inception. Post-independence, Justice Fazi Ali (1950-51) was the first Muslim Supreme Court Judge.

In 1958, the Supreme Court enjoyed the presence of two Muslim Judges with Justice M. Hidayatullah’s (1958-70) appointment, while Justice Syed Jaffer Imam (1955-64), was already a sitting Judge. In 1968, Justice M. Hidayatullah (1968-70) was appointed as the first Muslim Chief Justice of the Supreme Court of India.

After Justice Hidayatullah’s retirement, the Muslim seat was filled by Justice M. H. Beg (1971-78). Later, Justice Beg (1977-78) superseded Justice Khanna and became the second Muslim Chief Justice of India. Justice A. M. Ahmadi (1988-97) served on the Court for nine years. In 1994, Justice Ahmadi became the third Muslim Chief Justice of India.

During Justice Ahmadi’s tenure at the Supreme Court, Justice M. Fathima Beevi (1989-92), the first and only Muslim woman judge, was appointed. In 2005, Justice Altamas Kabir (2005-13) was appointed to the Supreme Court. Later in 2012, Justice Kabir (2012-13) became the fourth Muslim Chief Justice of India. Presently, Justice S. Abdul Nazeer (2017-23) is the only sitting Muslim judge on the Indian Supreme Court.

Parliament increased the number of Judges from 8 in 1950 to 11 in 1956, 14 in 1960, 18 in 1978, 26 in 1986, 31 in 2009 and 34 in 2019. In the 1950s, there was one Muslim out of seven appointed Supreme Court judges, which is approximately 15 per cent. In 1978, there were two Muslims out of 16, or 13 per cent. In 1986, there was one Muslim out of 14.

In 2009, there were two Muslims out of 26, or 8 per cent. In 2019, there was one Muslim out of 34, which is approx. 3 per cent. On the 1950s calculation, there ought to be five Muslims out of 34 Supreme Court Justices today. Yet, there is only one, Justice Nazeer.

Of the 214 retired and 33 present justices and chief justices who have served in the Supreme Court, 18 or 6.75 per cent have been Muslims. There have been periods as long as 2 ½ years when the Supreme Court did not have a Muslim judge. Clearly, there is a striking lack of diversity in India’s higher judiciary.

While Muslims constitute nearly 15 per cent of the population there is only one Muslim judge sitting at the Supreme Court. The composition of the Supreme Court in the recent years has been not a diverse one to accommodate justices hailing from religious minorities despite having some brilliant minds on the benches of various high courts.

At present two high courts have Muslim chief justices with more than 10 years of experience each — Meghalaya’s CJ Justice Mohammad Rafiq, a resident of Rajasthan and Tripura’s CJ Akil Abdulhamid Kureshi, a resident of Gujarat. Both retire in 2022. Justice Amjad Ahtesham Sayed is the most senior puisne judge at the Bombay High Court appointed in 2009, and retires in 2023.

Chief Justice K G Balakrishnan (2000-10), the Court’s first scheduled caste member, expressed concern that the Supreme Court does not have a Muslim judge. “It’s not a question of their rights being denied, it’s a question of proper representation of all religions, castes and regions at the apex court,” he told The Indian Express.

The Supreme Court of India is the only apex court in the world that chooses its own judges. It nominates judges through its own “collegium” comprising of the Chief Justice of India and the four senior-most judges of the Supreme Court.

A serious under-representation of Muslims in the Supreme Court suggests that the collegium has either not been sensitive towards the matter or has simply bypassed it in its deliberations to select and appoint judges.

Today, besides integrity, the judiciary faces the classic problem with merit: more often than not Hindu male judges with a certain expertise as lawyers and who have served as judges of high courts can rise to the Supreme Court comparatively easily but one needs to be an exceptional Muslim or woman candidate to make that rise.

It is hard to believe that there simply are not enough senior Muslim lawyers or that few aspire to a career in the judiciary. Prime Minister Narendra Modi assumed office in 2014 and now is in his second term as PM of India. In the last 6 years of his tenure as PM, only one Muslim judge was appointed to the Supreme Court of India.

It seems high time for the Supreme Court of India to reinforce its commitment towards the citizens of India and ensure that India remains a sovereign, socialist, secular and democratic republic. This could be advanced by the Supreme Court of India maintaining diversity and appointing more Muslim and women justices.

(The writers are, respectively, Professor and Dean, Jindal School of Environment & Sustainability and a Senior Research Association at Jindal Global Law School)