The uneven scales of justice: Caste disparities in higher judicial appointments

As India charts its path toward a democracy anchored in substantive equality,  the judiciary plays a pivotal role - not only as the custodian of constitutional values, but also as the architect of impartial institutions. However, beneath the ideal of judicial impartiality lies a troubling reality: the enduring influence of caste privilege in the appointment of judges to the higher judiciary.

Between November 9, 2022 and November 10, 2024, the Supreme Court Collegium approved the names of 170 candidates out of a total of 303 considered for appointment as judges of various High Courts. While the list reflects some degree of diversity, representation remains grossly uneven. Of the approved candidates, only 7 belong to the Scheduled Castes (SC), 5 to the Scheduled Tribes (ST), 21 to the Other Backward Classes (OBC) and 7 to the Most Backward Classes/Backward Classes (MBC/BC).

Additionally, 28 women, 23 individuals from minority communities and 12 candidates with familial ties to judges were selected. These figures bring to light the enduring challenge in building an inclusive judiciary and dismantling caste-based exclusion in its highest echelons.

A closer analysis exposes significant regional disparities in inclusive representation.

High Courts in states like Uttar Pradesh, Madhya Pradesh, Maharashtra, Gujarat and Punjab and Haryana continue to disproportionately favour candidates from the “General” category - largely occupied by historically privileged castes.

In contrast, states such as Tamil Nadu, Karnataka and Telangana - despite their varied political dispensations - offer a more inclusive canvas. We observe a discernible presence of candidates from OBC, MBC, SC and ST communities in judicial elevations. These southern states carry the legacies of robust social justice movements: the Self-Respect Movement in Tamil Nadu, the anti-caste mobilisations led by Basavanna in Karnataka and the Ambedkarite resurgence in Telangana. These legacies have fostered a culture of vigilance towards representational justice, even within elite institutions.

This divergence raises urgent constitutional and ethical questions. Why do some High Courts continue to resemble bastions of caste privilege? Why does the Collegium system of appointments - shrouded in opacity and insular selection process - fail to correct this imbalance?

Ironically, even in Tamil Nadu, India’s laboratory of social justice, alarm bells have been rung. Despite the State’s unparalleled commitment to reservation, affirmative action and anti-caste reform, the Collegium recommendations have reportedly favoured Brahmin candidates - those belonging to the historically privileged and minuscule minority in terms of Tamil Nadu’s population. Specifically, the allegation is that 4 Brahmins are being considered for six vacancies expected in May, while 12 Brahmins are already serving in the High Court of Madras. This has led to concerns about the overrepresentation of one community, raising questions about the inclusivity in the selection process. For many advocates and activists in Tamil Nadu, this is not just troubling; it signals a setback in the State’s hard-won, century-old battle for institutional democratisation.

The recent developments have revived memories of January 2014, when 15,000 advocates at the Madras High Court boycotted proceedings over the inclusion of three advocates, all Brahmins, in the list of proposed judges, calling for transparency and better representation of backward communities. A decade later, progress remains elusive, save for the accumulating dust on that very list.

It is not possible to ignore that even seventy-five years after the adoption of the Constitution of India, certain caste groups remain largely excluded from being elevated to the Bench, or have yet to be given the opportunity for the first time, despite the presence of many highly capable legal practitioners with strong practices and expertise before the High Courts.

Caste privilege often cloaks itself, as pointed out in Supreme Whispers, in the language of “merit”, “neutrality” and “integrity” - terms rarely interrogated within their socio-cultural contexts. The Collegium, with its self-referential norms, often overlooks how systemic exclusion works structurally: through elite legal chambers and access to top-tier education, advantages historically denied to marginalised communities. It must also be acknowledged that scientific advancements and modernisation have at least made efforts to reduce the gap, striving to democratise opportunities yet the diversity problem remained unaddressed.

However, these patterns reveal an ecosystem of caste privilege sustained by opaque legal networks - ranging from selective mentorship to an insular bar association culture - that sustains the “tyranny of merit”  while sidelining proportionate representational equity.

Diversity in the higher judiciary is not a symbolic gesture, it is a constitutional imperative. The absence of such diversity not only undermines the ideal of equality, but also erodes public trust in the judiciary’s ability to adjudicate the lived experiences of millions. For Dalits, Adivasis, and OBCs, justice is not an abstract principle. It is a daily struggle, demanding both institutional representation and lived empathy.

This moment calls for introspection: To what extent can a court reflect the constitutional ideal of justice when its composition is drawn predominantly from historically privileged castes? Can it fully appreciate the complexities of caste-based injustices, social discrimination and the imperative of affirmative actions? Can it realise the egalitarian vision enshrined in the Constitution?

The Collegium system, despite its constitutional standing, has fallen short of addressing representational imbalance. Its lack of formal inclusion criteria has allowed caste dominance to persist, raising serious questions about the judiciary’s commitment to substantive equality. It is time to reaffirm that the judiciary must reflect the diversity of the nation it serves. Judicial independence is essential, but so is its democratisation through equitable representation.

To this end, Parliament must now reconsider the constitutional framework governing judicial appointments and explore statutory inclusion norms akin to those in legislatures and public employment. The Bar too must play its part by mentoring, supporting and augmenting deserving candidates from historically marginalised communities.

As the adage goes, justice must not only be done, but be seen to be done. Until inclusivity becomes a foundational principle, the judiciary will continue to be perceived by millions as an institution guarded by the sentinels of entrenched privilege. Therefore, inclusive and adequate representation in judicial appointments is essential. Representation is not antithetical to merit. It is the precondition for ensuring ‘equal justice under law’.

Dhileepan Pakutharivu is an advocate practicing before the Madras High Court.

The views expressed here are solely personal and should not be attributed in any manner to any professional institutions that the author is affiliated with.