Reservations for the oppressed castes in the judiciary willthwart merit. This is why law minister Ravi Shankar Prasad’s assertion forcaste-based quotas for selection of lower court judges through the Union PublicService Commission (UPSC) has created a controversy. This is because althoughthe Constitution envisages reservation for the deprived sections, it does notmention reservations in the judiciary.
Neither the judiciary nor the executive should have primacyin judicial appointments which is done through the Constitution. This means theConstitution never envisaged a collegium for judicial selections which is whyRavi Shankar Prasad asked in 2017 why the Prime Minister could not be trustedto appoint judges. But to reserve seats for the OBCs, SCs and STs in thejudiciary would thwart merit because trial courts sentence murderers likeChandrabhan Sanap to death for raping and burning to death Esther Anuhya in2014. It is cold legal logic which matters here. Not caste, creed or community.
So, if caste is given primacy over merit to appease thedisadvantaged, murderers and rapists may be acquitted just as Bhanwari Devi’srapists were acquitted by a trial court judge, who observed in 1995 that anupper caste man would not rape a lower caste woman; nor would her husband watchhis wife being raped. Such words of wisdom prove caste affinities overridelegal logic even in the judiciary. “Eccentric” judge C.S. Karnan from TamilNadu who alleged caste bias against him may have been exaggerating – but castepermeates Indian society.
The fact that the judiciary is eclectic is obvious becauseSupreme Court judges from all over India arrange for lunch from their own regionon one day of the week to promote bon homie among brother judges. In thatrespect, the judiciary, like the army, has judges drawn from all communities.But there is no guarantee that OBs, SCs or STs will become better judges than open category law graduates who performbetter during selection. The solution may be to run free coaching classes forOBSc, SCs and STs to compete – not reserve seats for them.
Prasad announced in Lucknow on December 24 that “thejudicial services examination, if conducted by the Union Public ServiceCommission (UPSC), can be on the linesof the civil services where there is reservation for SCs and STs. Thoseselected can be allotted states to serve in and reservation will create allow deprivedsections to rise to higher positions in the judiciary.”Today, appointments tothe lower courts in the states are made by their respective high courtsdirectly or through state-level examinations conducted by the public servicecommissions. Hence, the chief justices and the two seniormost judges of the 24high courts select lower court judges through a written test and interview togauge their personality. For a crammer may have scored 90 per cent marks butnot be courteous in court. The word of the collegium is final.
A few lower court judges may be elevated to their own highcourt depending on their performance which includes their disposal rate andquality of judgments as evaluated by senior high court judges, some of whom aredesignated “guardian” judges for a class of courts. In the Bombay high court,we have the Subsidiary Investigation Department which keeps the records of alllower court judges to advise these “guardian” high court judges about thecapabilities of the lower judiciary .
The government has in the past proposed an all-Indiajudicial service to be conducted by the UPSC. But if the OBCs, STs or SCs, aregiven a quota in the judiciary, that may require a Constitutional amendmentbecause this falls within the purview of the 29 states and the governor isbound to administer the oath of office to whoever is selected by any of the 24chief justices. Some selections have proved disastrous.
Nine high courts have opposed the proposal to have anall-India service for lower judiciary. Eight others have sought changes in theproposed framework and only two have supported the idea. The high courts ofAndhra Pradesh, Bombay, Delhi, Gujarat, Karnataka, Madhya Pradesh, Patna aswell as Punjab and Haryana have not favoured the idea of All-India JudicialService (AIJS).
Only the high courts of Sikkim and Tripura have concurredwith the proposal approved by the Allahabad, Chhattisgarh, Himachal Pradesh,Kerala, Manipur, Meghalaya, Orissa and Uttarakhand high courts which suggestedchanges in age at induction level, qualifications, training and quota ofvacancies to be filled through the proposed service.
The high courts of Jharkhand and Rajasthan stated the matterregarding creation of the AIJS is pending consideration, while no response hasbeen received from the high courts of Calcutta, Jammu and Kashmir and Gauhati,a recent Law Ministry document showed. To find a solution, the governmentrecently suggested to the Supreme Court various options, including a NEET-likeexamination to recruit judges to the lower judiciary.
The president of the National Lawyers Campaign for JudicialTransparency Mathews Nedumpara alleged the judiciary has today turned into adynasty with a few privileged families taking key decisions. “The collegiumshave become incorrigible so only those who are proposed by a godfather whenthey are in their 40s become advocates-general and later high court judges whowill rise to become senior enough to enter the apex court.”
“Lawyers with meritbut no godfather seldom become judges. Dipak Misra was the nephew of the 21stCJI Ranganath Misra while Dhananjaya Chandrachud is the son of the 16th CJIY.V. Chandrachud and K.M. Joseph is the son of former SupremeCourt judge K.K Mathew,” he pointed out. But advocate Partho Sarkar of theIndian Bar Association said there was no harm in reservations for the oppressedgroups within the judiciary so they too could become apex court judges.
Olav Albuquerque holds a PhD in Media Law. He is ajournalist-cum-lawyer of the Bombay High Court.
