— ✍️Aditi Raibole

When DMK Member of Parliament and senior advocate Wilson introduced a private member's bill in the Rajya Sabha seeking constitutional amendments on two fronts: first, to mandate diversity in judicial appointments, and second, to establish regional benches of the Supreme Court under Article 130 of the Constitution- the bill marked something significant. It reflects a widening recognition, across the political spectrum, that the current architecture of judicial appointments is structurally incompatible with the constitutional commitment to equality and social justice.

The collegium system is the mechanism through which judges of the Supreme Court and High Courts of India are appointed in practice. It is a system in which the most senior sitting judges of the Supreme Court collectively decide who shall be appointed to the higher judiciary.

The system finds no explicit basis in the constitutional text. Articles 124(2) and 217(1) of the Constitution grant the President of India the formal authority to make appointments, but this is contingent upon consulting with the Chief Justice of India (CJI) and other senior judges. For the first four decades of the Republic, the term "consultation" was understood to allow the executive a fair amount of discretion in these appointments.

The most significant challenge to this arrangement came in 2014, when Parliament enacted the Constitution (Ninety-Ninth Amendment) Act, 2014, and the National Judicial Appointments Commission Act, 2014, seeking to replace the collegium with a statutory body- the National Judicial Appointments Commission (NJAC) that would have comprised the CJI, two senior Supreme Court judges, the Union Law Minister, and two eminent persons nominated by a committee. In Supreme Court Advocates-on-Record Association v. Union of India (2015) (the NJAC Judgment), a Constitution Bench of the Supreme Court struck down both the constitutional amendment and the statute as violative of the basic structure of the Constitution, holding that the inclusion of the Law Minister and the eminent persons threatened the independence of the judiciary.

The collegium system was thereby restored and has remained in place since. As it currently operates, the system has three defining institutional characteristics that are directly relevant to the question of judicial diversity. First, it has no statutory basis and is governed by no written criteria for appointment; there is no law specifying what qualities, backgrounds, or considerations must inform the collegium's recommendations. Second, it operates without transparency; that is, the deliberations of the collegium are neither recorded nor published, and the reasons for individual appointments or rejections are not disclosed. Third, it is accountable to no external institution; neither Parliament, nor the executive, nor any independent body can review, challenge, or override a collegium recommendation that has been reiterated.

It is this combination of self-selection, opacity, and unaccountability that scholars and legislators have identified as the structural root of the judiciary's persistent demographic homogeneity.

As Gadbois's empirical study of the Supreme Court's composition between 1950 and 1989 demonstrated, the bench has historically been drawn almost entirely from upper-caste, male professional backgrounds, and the collegium system, by selecting from within the same professional and social networks that produced it, has proved ill-equipped to disrupt this pattern on its own initiative.

Caste in the Courtroom

Between 1950 and 1989, 92.2 per cent of all Supreme Court and High Court judges were male members of upper-caste communities, with Brahmin communities forming the single largest group. Decades of affirmative action in education and public employment have not translated into comparable change within the higher judiciary. Today, of the approximately 782 working High Court judges, only 24 belong to SC/ST communities. In 14 out of 21 High Courts, there is not a single SC/ST judge. In the Supreme Court, only one SC/ST judge has been appointed since 2012, following a gap of over ten years.

The collegium system functions as a self-reinforcing loop. A bench that selects from networks shaped by caste privilege continues to produce a bench shaped by that same privilege, generation after generation. This dynamic is not unique to law; it mirrors what the sociologist Pierre Bourdieu described as the reproduction of social capital: elite institutions tend to favour candidates who already possess the cultural currency, social connections, and inherited dispositions that the institution itself has historically rewarded. In the Indian legal profession, that currency is overwhelmingly upper-caste in character, carried through family legal lineages, access to English-medium education, proximity to established senior advocates, and membership in the informal professional networks through which reputations are built and judicial appointments are made.

The problem, however, goes deeper than representation alone. When a whole bench comes from the same social background, influenced by the same caste networks, the same professional circles, and the same inherited beliefs, those shared beliefs will affect how the law is interpreted and applied. This is what Rosemary Hunter has termed "perspectival blindness" in her seminal work “More than Just a Different Face? Judicial Diversity and Decision-making” (2015). This means the incapacity of a socially homogenous institution to perceive the dimensions of a problem that fall outside its collective experience. It need not operate through conscious prejudice; it works far more quietly, through what arguments a bench finds intuitive, which claims it treats as self-evident, and which forms of harm it recognises as legally cognisable.

B.R. Ambedkar anticipated precisely this problem when he observed that those who have never experienced caste cannot be trusted to adjudicate it, not because they lack intelligence or integrity, but because the experience of caste subordination produces a form of social knowledge that privilege structurally forecloses. A more diverse bench is more likely to surface a broader range of interpretive possibilities, to question unstated assumptions, and to bring greater epistemic depth to cases that bear on the lives of those most excluded from the social mainstream.

Women and the Higher Judiciary

As of August 2023, the Department of Justice revealed that there are 106 women serving as High Court judges out of a total of 782, which is about 13.6 per cent. Interestingly, by mid-2023, none of India's 25 High Courts had a woman Chief Justice, except for the Gujarat High Court, where Justice Sunita Agarwal was appointed. However, the contrast with the district and subordinate judiciary is important. At this level, where appointments are made through competitive public examinations rather than through the collegium's discretionary network-based processes, women constitute approximately 36 per cent of judges.

This contrast demonstrates that the underrepresentation of women in the higher judiciary is not attributable to a shortage of qualified women in the legal profession. It is, rather, a direct product of the appointment mechanism: where selection is open, rule-bound, and assessed on measurable criteria, women are well represented; where it is discretionary, network-dependent, and insulated from external scrutiny, they are not.

The figure of 13.6 per cent demands closer interrogation than the number alone provides. No detailed community-wise data exists on the caste backgrounds of these 106 women judges- a silence that itself reflects the absence of any institutional mechanism within the collegium system for monitoring or reporting on the demographic profile of appointments. What limited evidence exists suggests that the vast majority of women who have ascended to the higher judiciary come from culturally elite (upper-caste), urban, and professionally established backgrounds, essentially the same social circles that male judges predominantly come from.

This matters because the 13.6 per cent figure, already dismally low, does not accurately represent the full spectrum of Indian women. Instead, it reflects the most socially privileged among them. Women from SC/ST communities, Denotified Tribes (D-NT), OBCs, and those from socially marginalised backgrounds remain largely invisible, even within this already limited representation.

The practical result is that the bench, even with its female members, does not embody the social experiences of the most vulnerable women, those who face the brunt of both caste and gender discrimination, whose cases require a structural understanding that the current bench is least equipped to provide.

The barriers women face are both practical and structural. Former Chief Justice N.V. Ramana highlighted the basics: overcrowded courtrooms, insufficient facilities, and a professional environment that is still unwelcoming to women lawyers. However, the challenges extend beyond infrastructure. Gender stereotypes still affect how clients choose their legal representatives, with male advocates often seen as more authoritative. The criteria that the collegium uses to evaluate candidates, seniority at the Bar, proximity to senior advocates, and depth of High Court exposure, are calibrated to professional timelines that do not account for the caregiving and domestic responsibilities that Indian society continues to assign disproportionately to women, a structural reality well documented in socio-legal literature on gender and the legal profession.

Marginalised communities are not a homogeneous group, and their experiences cannot be adequately understood by judges who share only one dimension of their identity. The violence that Dalit women (especially rural Dalit women) endure, including specific acts of atrocity and sexual assault that serve as tools of caste control, are realities that a bench without intersectional representation is simply less capable of fully understanding.

Conclusion

The underrepresentation of Scheduled Castes, Scheduled Tribes, and women in the Indian higher judiciary is not just a historical accident. It is a structural outcome produced and reproduced by an appointment process that is opaque and self-selecting, operating within a professional culture organised around the very hierarchies of caste and gender that the Constitution was designed to dismantle. To stop at that diagnosis, however, as much of the existing commentary does, is to understate the problem. The problem is not merely that the wrong people are on the bench; it is that a judiciary constituted in this way has, over decades, developed an institutional self-image in which its own homogeneity appears natural, meritocratic, and beyond question. This mindset stands as the most persistent hurdle to reform.

What Wilson's bill ultimately does is bring to light a question that Indian constitutional law has been dodging for far too long: can a judiciary that systematically leaves out the vast majority of its citizens from its own ranks truly claim to represent the Constitution that those citizens live under? In India, the opposition to judicial diversity is rarely explained by caste or gender biases. Instead, it is often framed as a concern for merit, independence, and the integrity of institutions. These concerns are not insincere, but they are applied in a selective manner. A collegium that has overseen nearly seventy years of significant exclusion of SC/ST communities and women has not shown a commitment to merit that goes beyond social background; rather, it has demonstrated that its definition of merit is a product of social privilege.

The Supreme Court of India is not merely a dispute-resolution mechanism. It is the institution to which the most marginalised citizens turn when every other institutional door has closed. A court that is structurally disconnected from the social reality of those citizens, that has no member who has navigated the intersection of caste humiliation and gender subordination, no member who has experienced the specific vulnerability of a Dalit woman before a state institution, is a court adjudicating in partial darkness. The judgments it produces may be technically sophisticated and doctrinally coherent, and yet they may systematically fail to see what they most need to see.

The reform that this situation demands is not simply a matter of adding more women or more SC/ST judges to an otherwise unchanged institution. Representation without transformation is insufficient. What is needed is a rethinking of the appointment process itself, one that replaces opacity with accountability, replaces network-based selection with transparent and auditable criteria, and replaces the collegium's self-referential conception of merit with one that is genuinely responsive to constitutional values.

Regional benches, as proposed in Wilson's bill, are part of this picture, not merely as a matter of geographic access but as a structural intervention that would diversify the cultural and linguistic base of the legal ecosystem from which apex court judges are drawn.

A Constitution that promises social revolution, drawing on Ambedkar's argument that those who benefit from caste are structurally foreclosed from fully apprehending its harms, allows one to argue that a bench without lived experience of caste subordination is ill-equipped to adjudicate it, and a judiciary that cannot adjudicate caste cannot carry the Constitution.

- Aditi Raibole is a law student at Government Law College, Mumbai. She completed her graduation in B.A. (Hons.) Sociology from LSR, Delhi.