Quite recently, we have witnessed a couple of judges openly speak about the need for diversity on the Bench. The demands for equal representation are, however, not new. They have existed for more than a century now. Lack of Representation The issue of representation was central to India's constitutional reforms, which happened even prior to the enactment of the Constitution...
Quite recently, we have witnessed a couple of judges openly speak about the need for diversity on the Bench. The demands for equal representation are, however, not new. They have existed for more than a century now.
Lack of Representation
The issue of representation was central to India's constitutional reforms, which happened even prior to the enactment of the Constitution in 1950. While there were many oppositions to the issue, Dr. B.R. Ambedkar firmly and consistently argued for "a proper admixture of the different communities in the public service". He demonstrated that the exclusion of "backward classes" from the administrative services was morally wrong and evil in the same way as the exclusion of Indians from public services during previous British policies.
Dr. Ambedkar further noted that the "the question of entry into the Public Service is… a question of life and death" for the Scheduled Castes, as they did not have openings for a career in trade and industry because of untouchability and biases against them. What Ambedkar said was equally applicable to the Indian legal profession and the judiciary.
In his work on the judges of the Supreme Court of India between 1950-89, American scholar George Gadbois wrote about the poor representation of Dalits (Scheduled Castes) and Adivasis (Scheduled Tribes) in the higher judiciary. For the first three decades since independence, there was no Dalit or Adivasi appointed in the Supreme Court. In 1983, out of nearly 400 high court judges, only six were from the Scheduled Castes, while the Scheduled Tribes had no representation whatsoever. The situation has not improved much, as the data provided by the National Commission for Scheduled Castes noted that as of 2011, there were only 24 judges belonging to Dalit and Adivasi community against a total of 850 judges in all the 21 High Courts. If one is to go by the logic of proportional representation, there should have been close to 191 judges from Dalit and Adivasi backgrounds across 21 High Courts.
The picture is especially grim, when it comes to the Apex Court. Till date, the Supreme Court of India has seen a total of only 5 judges from Dalit community, and only 1 judge from Adivasi community – only 2% of all judges ever sitting on the bench. The data on the composition of the Indian legal profession is not available, however if one is to draw inference from the recent designations of lawyers as senior advocates, including the recent senior counsel designations of the Delhi High Court, the near absence of Scheduled Caste and Scheduled Tribe designated senior counsels is very clear.
This is the reality not for Dalits and Adivasis only, but our legal profession does not reflect the presence of women, Other Backward Classes, nomadic & denotified communities, transgenders, persons with disabilities, Muslims, and other marginalised identities. It is also important to note that the conversation on the representation of marginal intersections has not even started. Take for instance, the representation of Dalit and Adivasi women, or Pasmanda Muslim women.
There have been some appointments in the judiciary from marginalised sections, but it is high time that we move beyond tokenism in appointments, and end our silence on the pressing need for due representation.
Why Representation Matters?
The first step to do so is to identify and acknowledge the structural hierarchies which have led to this situation of underrepresentation of India's marginalized communities in the legal profession and the judiciary. In the analysis of Gadbois (1985), since certain communities such as Brahmins were traditionally privileged groups when the British arrived, they adopted the modern English education introduced by the British regime. As a result, "by the time of independence, they were found in large numbers in politics and the professions, especially law". They thrived and dominated in a post-colonial legal profession and the judiciary, where the language of instruction was English.
Though the problem of under-presentation is structural, there have been no systemic measures to improve the representation of the hitherto excluded communities in the legal profession. In the absence of due representation, the institutional legitimacy of the legal profession and the judiciary comes into question. A very telling example of this is the strong uproar from Dalit and Adivasi communities against a 2018 judgment of the Supreme Court that diluted the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. At that time, there was not a single Dalit or Adivasi sitting judge in the Supreme Court. A diverse bar and the bench has the potential to bring new perspectives to our jurisprudence and justice delivery system. Especially because without representation our jurisprudence often fails to capture the lived experiences and rights of marginalized communities.
CEDEing social capital
To address the lack of representation and diversity in the legal profession and the judiciary, it is necessary to start taking forward steps. CEDE (literally means to transfer control) is one such initiative in the direction. Through CEDE (Community for the Eradication of Discrimination in Education & Employment (https://www.cede.co.in/), we are envisioning an inclusive legal system. In the past five months, CEDE has been building a community of lawyers, law firms, judges, and other organisations and individuals, who are committed towards reforming the Indian legal profession by remedying the injustice of under-representation within.
There are similar examples in other jurisdictions such as the United States, where the American Bar Association encourages the bar to take proactive steps to recruit candidates from marginalized communities.
What CEDE does
CEDE has envisaged a number of initiatives to realise its vision. Firstly, through our flagship program we are creating a network of lawyers, judges, law professionals and organisations who will commit to offering at least one paid internship each year to a student selected by us, from marginalized social backgrounds. Secondly, through research and advocacy we will be forming an active discourse on the need for representation in the legal system. Thirdly, we will be identifying and addressing the structural barriers through mentorship, capacity building, and peer learning mechanisms for law students and young lawyers from marginalised social backgrounds.
Around 33 law professionals/law firms/organisations (including Senior Advocates Rebecca John, Nitya Ramakrishnan, Sanjay Hedge, Mihir Desai, Vaish Associates, Commonwealth Human Rights Initiative, etc.) have shown their commitment to CEDE's vision: https://www.cede.co.in/empanelled-advocates.
A centralised system has been set-up by CEDE (with expert inputs from sociologist Satish Deshpande, among others), via which candidates can apply and get shortlisted for these internship positions. Leading academics and professionals like Michael Klarman (Professor, Harvard Law School), Tarunabh Khaitan (Professor, University of Oxford), Sukhadeo Thorat (former UGC Chairperson), Shailaja Paik (Associate Professor, University of Cincinnati, USA), and others, are guiding us as advisors.
The Way Forward
CEDE's foundational values are grounded in the ideas of Dr Ambedkar, who stated that a responsible government would be the one which has representatives from underrepresented communities. Taking a cue from this, CEDE believes that a responsible and accountable legal profession and the judiciary would be the one which is truly representative and diverse.
While referring to the need for representation of marginalised communities, the late Justice O. Chinappa Reddy asserted that:
"their needs are their demands. The demands are matters of right and not of philanthropy. They ask for parity, and not charity….They claim their constitutional right to equality of status and of opportunity and economic and social justice. Several bridges have to be erected so that they may cross the Rubicon... [and] for their legitimate share."
These golden words should serve as a constant reminder to the Indian legal profession and the judiciary.
(Disha Wadekar, Anurag Bhaskar, and Avinash Mathews are co-founders of CEDE. Disha is an advocate practicing before the Supreme Court of India, Delhi. Anurag is an Assistant Professor at Jindal Global Law School, Sonipat. Avinash is an Associate at Shardul Amarchand Mangaldas, Delhi.)
NOTE: The launch event of CEDE is happening on 14th April, 2021 (5 PM- 6 PM), where Dr. Justice D.Y. Chandrachud (Judge, Supreme Court of India) will be delivering the inaugural lecture on the theme 'Why Representation Matters'. The event, in collaboration with 'Live Law', will be streamed here: https://www.youtube.com/watch?v=Ybp3THnR3sk