An impartial and independent judicial branch is crucial for democracy to succeed and to protect and preserve a country’s constitution. It is vitally important that judges are seen to be both free and fair, that justice must not only be done, it must be seen to be done. This is a must for a country like India with a highly segmented society.
Since the late 1980s, after the breakdown of one-party domination at the federal level, the Supreme Court is one of the few public institutions in India which had become powerful and assertive.
When a right wing government came to power with an absolute majority in the Parliament, an independent-looking Supreme Court had given the hope that it would act like a bulwark against any impending attacks on the secular character of the Indian constitution.
India’s Supreme Court is not only dominated by the upper caste Hindus but also by men. There are only two women judges at present. Since independence, only 8 women have managed to become the judges of India’s highest judiciary.
India’s Supreme Court, after getting its strength and voice in a climate of coalition politics had given several remarkable judgements on the issues of federalism, human rights, and the environment.
Of course, the judges have been often accused of nepotism, but corruption and nepotism have become so common that it would be unthinkable to see the Supreme Court stay above this malice.
As recent as in 2017, in a suicide note, the late Chief Minister of a state had even named family members of two Supreme Court Chief Justices and several judges for demanding huge sums as a bribe.
While India’s highest judiciary was accused of individual failings, those allegations had not stopped the appreciation of its institutional willingness and ability to protect India’s constitution and its basic tenets.
Caste and gender composition of judges
However, the expectation from the Supreme Court to protect India’s secular character under a Hindutva government was wishful thinking only as it was not based on analysing the caste and gender composition of its judges.
Unlike the US, where judges are appointed by the political leadership and the ideological leanings of the judges are open to all, in India, the judges select themselves.
So, that has led to a belief that the judges in India are above ideological limits and are selected based on their merits and competence to analyse and adjudicate as per the law of the land.
However, India is a highly segmented country. No one can overlook the fact that the upper-caste Hindu judges, particularly Brahmins overwhelmingly dominate India’s Supreme Court. As the judges recruit judges, they keep recruiting from their social groups.
Brahmins are only 4% of India’s population, but nearly half of Supreme Court Chief Justices since its independence are from that caste group.
The last two Supreme Court Chief justices were Brahmins and the present Chief Justice too. Even after the retirement of one controversial Brahmin judge at the beginning of this month, there are still 11 of them in the Supreme Court.
25 judges out of a total of 30 judges at present are Brahmins and other upper-caste members. Only one judge is each from Other Backward Class (OBC), Dalits and Muslims.
OBC constitutes 40% of the total population, Dalits 17%, and Muslims are more than 14%. Not a single judge from the indigenous population group (ST), even if they are 8.6% of India’s population.
India’s Supreme Court is not only dominated by the upper caste Hindus but also by men. There are only two women judges at present. Since independence, only 8 women have managed to become the judges of India’s highest judiciary.
Upper-caste old men's clubs
The Supreme Court benches have been predominantly Hindu upper-caste old men's clubs. Hindu superiority is ingrained in their thinking and beliefs. The present Chief Justice is from the Hindutva heartland Nagpur and is proud of his family’s association with Hindutva ideologue Savarkar.
Supreme Court might have made some commendable judgements on constitutional matters in the past, but it had never been tested on the issue of secularism till Narendra Modi came to power.
The Apex Court initiating the process for the Modi government to pass a law to criminalise triple talaq, it guiding the creation of a national register of citizens in Assam which targets Muslim immigrants, and also refused to put hold the implementation of the Citizenship Amendment Act that discriminates Muslim refugees are clear examples of the bias.
The Supreme Court, which has been in the past so protective about principles of federalism, has kept its silence on the government taking away the limited autonomy of the Muslim majority, Kashmir by abrogating Article 370 of the Constitution.
The same Supreme Court, which in the past had made some laudatory judgements on the issues of individual rights, has not followed that principle while serious cases of human rights violations are taking place to the Muslims in Kashmir.
Upper caste-dominated India’s judiciary creates further hopelessness about India’s future and its inclusive and secular character.
The Constitution and fundamental rights of hundreds of millions of minorities in India are of no value if there is no fair judiciary to safeguard them.
The 7th president of the US, Andrew Jackson had famously said in 1822, “All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary.”
Sadly, the present Indian judiciary has shown no such independence on the issues concerning the country’s socially oppressed groups.
Ashok Swain is a Professor of Peace and Conflict Research, Uppsala University, Sweden
