Judges are the high priests of justice delivery and must keep silent outside their court rooms, taking their secrets to the grave. If one or two write to the Prime Minister, they will not be given full-court reference farewells, as Justice Rang Nath Pandey of the Allahabad high court realised to his chagrin—when he broke protocol to retire unceremoniously without the customary farewell.
Four days before retiring, he had the temerity to write directly to Narendra Modi, complaining about alleged casteism in the judiciary – ignoring judicial etiquette which demands he cannot bypass the chief justice of India (CJI) who is the head of the judicial family. A former Madras high court judge, C S Karnan, had the dubious distinction of being the first high court judge in India to be sent to jail for six months on May 9, 2017, for alleging there was caste bias against him and complaining about 20 judges who, according to him, were corrupt.
Justice Rang Nath Pandey wrote directly toModi alleging appointment of judges through the collegium system were based on casteism and nepotism which were afflicted by opacity, favouritism and bias, he claimed. Interestingly, Justice Pandey was a former member of the judicial public commission service in 1985 and later served as a special secretary to the UP government from 2009 and 2014 so that confidential files of putative judges would go through his hands before being sent to the collegium in the Supreme Court.
Interestingly, the 37th CJI K G Balakrishnan, was the first Dalit to become a chief justice of India, although his tenure of over three years was marred by an unseemly controversy of allegedly overlooking a bid by DMK minister A Raja to influence a Madras high court judge to grant bail to a murder accused. Justice Bhushan Gavai, from the Bombay High Court, will be only the second CJI to belong to a backward caste when he is sworn in as the 51st CJI in 2025. Interestingly, he is a neo-Buddhist and his father was an MLA in Maharashtra.
Justice Pandey was made a district and sessions judge in 2014 and a high court judge of the Lucknow bench in 2017 and confirmed after slightly over one year when the probationary period is two years. Perhaps he knew what he was talking about. He complained to Modi that the names of future judges were made public only after the entire process was completed.
Justice Jasti Chelameshwar had boycotted collegium proceedings in August 2017 when he was the seniormost judge of the Supreme Court, on these same grounds. Striking a similar note, Justice Pandey alleged that while the questions of ‘who and how’ remained unknown, the practice of keeping the procedure a secret violated transparency so that whether that judge performed unbiased judicial work also remained a question mark.
In a damning indictment, Justice Pandey alleged that when the appointment of the relatives of some senior judges as high court judges was difficult, they were made judges in the subordinate judiciary as the selection and appointment of subordinate judges was done under the aegis of the State Public Service Commission (of which he was once a part) and the concerned high court.
He also expressed regret that the National Judicial Appointments Commission (NJAC) never saw the light of day. The Supreme Court had struck down the NJAC Act as unconstitutional back in 2015 to uphold independence of the judiciary which is a euphemism for the collegium system of judges appointing themselves to the 24 high courts and the Supreme Court. Strangely, it often transpires that the kith-and-kin of judges are selected as judges although there is definitely merit in most appointments. The present CJI Ranjan Gogoi is the son of a former Assam chief minister while his predecessor was the nephew of the 21st CJI Ranganath Mishra from 1990-91.
Whether we like it or not, Hinduism without the caste system is like communism without Karl Marx. And again, whether we like it or not, the Manusmriti antedates the Indian Constitution by about 2,000 years so that Constitutional morality may not override precepts ingrained into devout Hindus for centuries — at least within the privacy of their homes — whether they be judges, IAS or military officers where caste is taboo.
Researchers have postulated that the low conviction rates for crimes against the Scheduled Castes and Scheduled Tribes may arguably be attributed to the world view of the largely upper-caste judiciary which was why a more stringent legislation was put in place. It is the Manusmriti which lays down the foundation for a caste-based society which Mahatma Gandhi tried unsuccessfully to obliterate by coining the word “Harijans” which meant children of God.
In 1995, a sessions judge acquitted five Gujjar men of raping Bhanwari Devi (from the Kumbhar or potter caste) in 1992, observing in passing that an uncle would never rape a woman in front of his nephew nor would the victim’s husband remain a passive spectator while the heinous crime took place. One rapist was the uncle of the other. Ironically, the rapists beat Bhanwari’s husband unconscious before raping her.
Today, while Union law minister Ravi Shankar Prasad lectures Supreme Court judges not to use strong language in their judgments, ignoring the demarcation between the executive and the judiciary, other issues like alleged corruption in the registry of the Supreme Court has surfaced. CJI Ranjan Gogoi has asked the CBI and Delhi Police to watch over the registry to identify employees who list sensitive cases out-of-turn before select benches. Two employees were sacked when they manipulated a court order directing a well-known industrialist to remain present in court.But that has nothing to do with casteism.
The writer holds a PhD in Media Law.
He is a journalist-cum-lawyer of the Bombay High Court.
- Olav Albuquerque