Pressure likely to mount on Collegium to recommend appointment of SC/ST/BC Judges to High Courts and Supreme Court

Even as the Supreme Court’s Collegium, after its reconstitution under the new Chief Justice of India, Justice T.S.Thakur, is yet to hold its first meeting to recommend new Judges to the High Courts and the Supreme Court, LiveLaw has learnt that pressure is likely to be mounted on it to recommend sufficient SC/ST/BC Judges to High Courts and Supreme Court.

With six vacancies of Judges in the Supreme Court (four current and two immediate future vacancies), and more than 400 vacancies of Judges in the High Courts requiring the Collegium’s immediate attention, those who are concerned with absence of diversity in the Apex Court and the High Courts are making a determined effort to bring the issue of social justice in the appointment process to the fore. They suggest that “if this opportunity is lost, the door will be closed for them for another 15 to 20 years in the High Courts”.

A prominent proponent of reservations for these deprived sections in the Judiciary, and a former civil servant at the Centre who helped the then VP Singh Government to notify the Mandal Commission recommendations in 1990, PS Krishnan, has taken the initiative in this regard, and has spoken to Yogendra Makwana, former Minister of State, Ministry of Home Affairs and other Ministries in Central Government.

Makwana and Krishnan were closely associated from 1980 to 1982 when the former was the Minister of State for Home Affairs in whose portfolio SCs and STs were included and Krishnan was the Joint Secretary, Ministry of Home Affairs in charge of SCs and Backward Classes Development and Welfare. Their association has continued till now in the cause of Social Justice for the three deprived classes. Makwana is considered one of the bravest and most sincere and well-informed Dalit leader.

Makwana has convened a meeting of lawyers and representatives of all political parties of Gujarat at Ahmedabad on 13 December, and thereafter he proposes to hold similar meetings in Rajasthan, Maharashtra, Madhya Pradesh etc. He will also be going to Delhi and meeting the Prime Minister, the Law Minister and, if possible, the President with a delegation on this subject and give them the relevant Resolutions and Memorandums.

In a statement, prepared by Krishnan, and senior advocate, Supreme Court, Annam Subha Rao, they have pointed out that at present, in the Supreme Court, there is not a single judge belonging to the Scheduled Castes or Scheduled Tribes. There are only two judges belonging to the Socially and Educationally Backward Classes (SEBCs) (OBCs) and there is only one woman judge.

In the High Courts, Krishnan and Rao have pointed out that the representation of these sections is no better, and continues to be negligible or nominal. According to Krishnan and Rao, there are adequate numbers of SC, ST, and BC candidates, who fulfill the Constitutionally prescribed qualification for filling the vacancies in the Constitutionally prescribed proportion of 15%, 7.5% and 27% respectively. They also claim that there are adequate women candidates, to fulfill their fair share which is prescribed in the 73rd and 74th Amendments of the Constitution and envisaged in the long-pending Women’s Reservation Bill as “one-third”, who should be from SC, ST, BC in the Constitutionally prescribed proportion and the rest from non-SC, non-ST, non-BC castes.

Significantly, Krishnan and Rao have also underlined the Constitutional imperative of giving due representation to these sections in the Higher Judiciary. The collegiums, both at the Supreme Court and the High Courts, need to be requested to follow this imperative, they have suggested.

In support of their view that there is such a Constitutional imperative, Krishnan and Rao have given the following reasons:

1. 
   

   According to Justice Mathew, in the Kesavanada Bharati case [1973 SCR 1] and in N.M. Thomas case [(1976) 2 SCC 310 : 1976 SCC (L & S) 227], the term “State” in Article 12 covers the judiciary also.

   
   
2. 
   

   The observations of Justice S. Ratnavel Pandian, who presided over the 9-Judges Bench in the second Advocates-on-Record case (1993 – 4 SCC 441), at page 576, paras 224 and 225 and at page 578, para 230, cannot be ignored and have to be followed.

   
   
3. 
   

   The concurring judgments of Justice Sawant and the judgment of Justice B. P. Jeevan Reddy on behalf of the majority in the Mandal case judgment [Indra Sawhney vs Union of India, 1992- Suppl. 3 SCC 217] are also important.

   
   

These judgments, according to Krishnan, have upheld the Constitutional validity of reservation for SEBCs in the posts and vacancies under the State, which also applies to the judiciary including higher judiciary, since it is covered by the definition of the “State” under Article 12.

According to Krishnan and Rao, what the Supreme Court has said about SEBCs applies certainly to SCs and STs also. Krishnan and Rao have also drawn attention to the recent debate in Parliament on 26 and 27 November, to mark the Constitution Day, leading to unanimous passage of a Resolution committing the Members to the Constitution and its principles and specifically mentioning Equality and Social Justice in that Resolution. During the debate some of the MPs also wanted the gross imbalance with regard to the absence / negligible presence of SC, ST and BC in the higher judiciary to be rectified. Krishnan and Rao have drawn attention to the new Chief Justice of India T. S. Thakur’s observation that it is a major challenge to dispel the people’s negative perception about the collegium’s function and that he would try to dispel the impression of nepotism and favouritism in the judges appointment process. Justice Thakur has also revealed that one of his two priorities is to infuse transparency in the appointment of judges through the collegium system. Krishnan has also referred to the Law Minister Sadanand Gowda’s reply on 3 December in the Lok Sabha to a question stating that:

1. 
   

   “Parliament shall have the power within the parameters of the Constitution to govern the criteria and process for appointment of judges to Supreme Court and High Courts”.

   
   
2. 
   

   The Government has submitted its suggestions to the Supreme Court regarding appropriate measures to improve the working of the collegiums system

   
   
3. 
   

   “The government has taken the stand that it reserves its liberty to take such action as it may decide fit and nothing in the suggestions made by the Government or participation in the proceedings ought to be construed as the government being stopped from such action.”

   
   

Krishnan and Rao, therefore, have suggested to the Prime Minister and the Law Minister to write to the Chief Justice of India (CJI) who heads the Supreme Court collegium and the Hon’ble Chief Justices of all the High Courts who head the respective High Court collegiums to fill up the vacancies in the Supreme Court and High Courts as follows:-

(i)  Of the four current vacant posts of Judges in the Supreme Court,

(a)  One be filled with the senior-most SC judge of the high courts in the country as there is not a single SC judge in the Supreme Court.

(b)  One be filled with the senior-most ST judge of the High Courts in the country as there is not a single ST judge in the Supreme Court

(c)  One be filled with the senior-most BC judge of the High Courts in the country as there are only two BC judges in the Supreme Court

(d)  The fourth vacancy be filled with the senior-most woman judge of the High Courts in the country as there is only one woman judge in the Supreme Court.

These four vacancies can and need to be filled as above immediately, say before the year is out, as a good augury for the new year.

(e)  Future vacancies need to be filled up in such a manner that the backlog is covered and the Constitutional proportions mentioned above are achieved.
(ii)  Of the vacant posts in the High Courts,

(a)  15% be filled with SC candidates from the senior-most district judges and from SC Advocates, who fulfill the Constitutionally prescribed qualification

(b)  7.5% be filled with ST candidates from the senior-most district judges and from ST Advocates, who fulfill the Constitutionally prescribed qualification

(c)  27% be filled with SEBC candidates from the senior-most district judges and from SEBC advocates, who fulfill the Constitutionally prescribed qualification.

In States, where SEBCs have been categorized, candidates from each of those categories be ensured. The Centre, where there is no categorization of SEBCs, should introduce categorization into Backward , More Backward, Most Backward and Extremely Backward castes of SEBCs as recommended by the NCBC, he has suggested.

The Centre should write to the Chief Ministers of States, where there is no categorization like Uttar Pradesh, to introduce similar categorization.

(d)  One-third be filled with women candidates who fulfill the Constitutionally prescribed qualification from the senior-most SC, ST and SEBC district women judges and women advocates who fulfill the Constitutionally prescribed qualification in the same proportion as above.

Krishnan and Rao have urged that the Prime Minister and Law Minister write to the Chief Justice of India and the Chief Justices of High Courts, to insist that

(i)  Only the qualifications prescribed in the Constitution should be taken into account

(ii)  In assessing candidates from the bar, cases pertaining to income tax, customs , excise and the like and the value of income from such cases should not be taken into account.

(iii)  Weightage should be given to cases undertaken by the candidates to defend the rights of SCs, STs, SEBCs, women, children, the disabled, bonded labourers, Safai Karmacharis and defence of reservation and in defence of other issues of Social Justice and against “Untouchability”, atrocities against SCs and STs, crimes against women and children.

(iv)  In considering High Court judges for appointment to Supreme Court, judges who have shown ignorance of or have ignored the basic facts of the Constitution should be straightaway disqualified.

More significant, Krishnan and Rao have drawn attention to the judgment rendered on 13 November 1991 by a 3-Judges Bench in the All India Judges Association Vs Union of India (1992 - 1 SC 119), in para 63 (i) at page 140, in which the Supreme Court directed that “an All India Judicial Service should be set up and the Union of India should take appropriate step in this regard”. Parliament enacted the Constitution (Forty-second Amendment) Act 1976, Section 45 (w.e.f. 3.1.1977), inserting the terms “including an All India Judicial Service, common to the Union and States, as one of the All India services, the parliament may, by law, create”. Krishnan has deplored the fact that the Government of India has failed to move for the creation of the All India Judicial Service though nearly four decades
have passed. If that Service had been created promptly, it would have automatically had the reservation provisions as for all other All India services and by now, we would have had a large rich reservoir of experienced High Court judges of the SC, ST, SEBC and women, some of whom would have found place in the Supreme Court in fair proportions, Krishnan and Rao say.

This failure and neglect should not be continued and the Prime Minister and Law Minister may consider and immediately move a legislation in the Parliament for creation of the All India Judicial Service, they have suggested.

Saying that the High Court judges who are appointed now will retire only after 15 or 20 years, Krishnan and Rao have cautioned that if these posts are filled up as in the past, ignoring SCs, STs, SEBCs and women in the prescribed proportions, the door will be closed to them for a long period. Therefore, it is imperative to implement the reservations as proposed, they say.