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excluded from judgeship without explanation
On , the notified nine advocates to take oath as Additional Judges of the . The tenth name on the list—cleared by the on and endorsed by every —was that of , . He did not take oath. No reason was given. The silence has ignited a debate about transparency, , and a persistent in the higher judiciary that, according to a practising advocate writing in a personal capacity, “is itself the injury.”
The exclusion is not an isolated incident. In , the recommended five advocates for the same court; the Centre appointed three and withheld the two turbaned Sikhs— and . A bench headed by Justice Sanjay Kishan Kaul asked in open court: “Two of the candidates not cleared are both Sikhs. Why should this arise?” No official answer ever came. The two were appointed only in , sixteen months later, their seniority permanently impaired. The question now echoes louder: why has a decorated military veteran and constitutional expert been silently dropped?
The Man and the Silence
’s credentials are public and formidable. He is the most decorated officer in the history of the Territorial Army, with eleven commendations earned while serving in counter-insurgency areas during court vacations. He founded the , served on the to curb litigation against soldiers, contributed to international military justice instruments at Yale and Stellenbosch, and has authored several books and over two hundred articles. He was the only military veteran among the ten recommended, and the only turbaned Sikh.
The author of the opinion piece, a practising advocate at the , makes clear: “I do not claim to know why he was excluded. That is precisely the point. No reason has been recorded, disclosed or even hinted at, to him, to the or to the public. What I am asking is why the country is not entitled to know.” The process, as designed under the , permits the government to return a recommendation with reasons for reconsideration. Instead, the government remained silent while notifying everyone else.
A Pattern of
This is not limited to any one community. withdrew his consent to a judgeship in after a year of silence while his batchmates were appointed. , one of India’s finest intellectual property lawyers, withdrew in after the government appointed the two advocates recommended alongside her and never acted on her file. In each case, no reason was stated. A lawyer who consents to a judgeship winds down a practice built over decades; leaving such a person indefinitely is, as the author puts it, “a quiet cruelty.”
The burden falls disproportionately on candidates from underrepresented backgrounds. Of the roughly fifty-five judges serving in the before these appointments, only eleven were Sikhs, in a court whose jurisdiction includes the one Indian state where Sikhs are a majority. Only five of those eleven came from the Bar; the rest rose from the judicial services, as a matter of right, by seniority, and “with little time left to shape the court’s jurisprudence,” the author notes.
The Numbers Tell a Larger Story
Higher up, the has not had a Sikh judge since Chief Justice J.S. Khehar retired in . Justice Gurmeet Singh Sandhawalia, Chief Justice of the , is by all India seniority the third senior-most High Court judge and the senior-most sitting Sikh Chief Justice, with an unblemished record. Yet when the recommended five appointments to the , he was passed over; a judge junior to him from his own parent High Court was elevated instead.
The pattern extends beyond religion. The , in the capital of a country with a sizable Muslim population, has forty-four judges serving against a sanctioned strength of sixty—and not one publicly identifiable Muslim among them. The today has one Muslim judge and one Christian judge against a sanctioned strength of thirty-eight. As for caste, the informed the in that of 715 High Court judges appointed since 2018, only 22 were from Scheduled Castes, 16 from Scheduled Tribes, 89 from Other Backward Classes, and 37 from minorities—leaving roughly seventy-seven per cent drawn from upper castes, disproportionately from a narrow, urban, English-speaking elite, from established legal families and a handful of storied chambers. The , in its 133rd Report of , called this a “” and recommended that collegiums recommend adequate numbers from marginalised sections. Nothing of the kind has been implemented.
This Is Not an Argument for Quotas
The author is careful to distinguish from . “There is no in the higher judiciary, and no one is asking for any,” the piece states. But the absence of a quota is not the absence of a . Four ideas must be kept apart: , , merit, and selection. The argument is not that anyone should be appointed because of community, but that when several candidates are professionally qualified, the institutions choosing among them cannot be indifferent to a pattern in which entire sections of society are systematically absent from the outcome.
This matters for justice itself, not merely for appearances. Judging is not a mechanical act. Every judge applies —, , , —to the facts of other people’s lives. What strikes a judge as reasonable or fair depends on the range of lives that judge is able to imagine. In a country of this size and diversity, where the same statute falls upon a tribal forest dweller, an urban startup founder, and a landless labourer, a bench drawn from a single narrow stratum will, with the best will in the world, see some litigants clearly and others only dimly. Diversity on the Bench is therefore not a concession to identity politics; it is an for a fairer and more equitable system of justice—one in which litigants of every description can be understood, and can believe they will be understood. South Africa’s framers constitutionalised this concern in , directing that the need for the judiciary to reflect broadly the racial and gender composition of the country must be considered. India left composition to the discretion of under , but a discretion left unstructured by text is structured by .
What If There Is a Reason?
The fair-minded reader will ask: perhaps there is something about this candidature the public does not know. The author accepts that possibility without . “There may be considerations of suitability known to the Government and not to us; I do not claim otherwise.” But ’s own machinery answers this. The permits the government to return a recommendation, with reasons, for the ’s reconsideration. What the government has done instead is neither to appoint nor to return, but to sit silent while notifying everyone else. “If there is a reason, the process exists to state it. If there is none, the appointment must issue. A should not operate through , because is indistinguishable, from the outside, from , and the reputational cost of that ambiguity is borne by the candidate and by the institution, never by the officials who maintain the silence.”
Why the Stakes Are So High
These are not ordinary personnel decisions. Not a single judge of a High Court or the has been removed through the in seventy-nine years. A judge once appointed will interpret and decide questions of life, liberty, and property for decades, answerable in that time to conscience alone. The serves upward of six crore people through a working bench in the sixties—roughly one judge for every ten lakh citizens. Nationally, as on , 797 working judges served against a sanctioned strength of 1,122—nearly one in three seats vacant. In a system this stretched, every name added or withheld matters enormously, and every unexplained withholding is a decision of taken invisibly.
The Lawyer Watching
Finally, the piece asks what all this teaches the young lawyer watching. A first-generation lawyer, a Dalit or Adivasi lawyer, a Muslim or Sikh lawyer, a woman without a judge for a father, a scholar, an independent mind—each learns, episode by episode, that the system will not reliably reward merit, integrity, scholarship, courage, or the diversity they embody, and that it may answer those qualities with silence and limbo. Many of the best will simply stop thinking of judgeship at all. The author confesses: “I am one of them.” That loss appears in no government table, but the institution will pay for it for a generation.
The core question remains: who gets to judge in India? Today the honest answer is: whoever survives a process in which the chooses behind closed doors and the government vetoes behind closed lips. Neither should be able to decide invisibly. If there is material against , let it be returned to the with reasons, as the process commands. If there is none, let the warrant issue. And in either event, let both institutions begin doing openly what ’s promise of demands: seeking out able candidates from every section of this country, appointing them, and telling us why when they do not. Until then, every list of ten that arrives as a list of nine will ask a question the system refuses to answer, and the silence will go on doing its quiet damage.
