As the judiciary becomes over-protective of its powers vis-a-vis the executive, the nature of its social base causes concern.
WHEN Law Minister Ram Jethmalani quit the Union Cabinet in July, the government indicated that his exit had become necessary to maintain "cordial" relations between the executive and the judiciary. Whatever the immediate circumstances that forced Jethmal ani's resignation, the import of the government's explanation was not understood sufficiently.
What was glossed over in the Jethmalani debate was the changing contours of the relationship between the executive and the judiciary: the judiciary has, of late, tended to resist even the slightest intrusion into its domain by the executive or the legisl ature. There are several interactive elements between the two arms, particularly in matters of the appointment, tenure and removal of Judges. It is feared that as the judiciary becomes over-protective of its domain, these interactive aspects, which often constitute a fine balance of powers, may get weakened.
Ever since the Supreme Court wrested from the executive primacy in the matter of the appointment and transfer of Judges in the Advocates-on-Record case in 1993, the political class has unwittingly conceded more ground to the judiciary than is required un der the Constitution. As a result, for instance, the executive and the legislature have been unable to ensure that the members of weaker sections - the Scheduled Castes and the Scheduled Tribes - and women get meaningful representation in the judiciary.
It is not as if the shrinking social base of the judiciary had not caused concern earlier. In the Advocates-on-Record case, Justice S.R. Pandiyan, while concurring with the majority opinion that the Chief Justice of India (CJI) in consultation with his s enior colleagues should have the decisive influence over judicial appointments, added that it was necessary to make judicial appointments as broad-based a process as possible. Justice Pandian's estimate - valid even today - was that less than 4 per cent of Judges in the higher judiciary was from among the S.C. and S.T. sections and that less than 3 per cent were women.
In his ruling Justice Pandiyan, outlined the contours of interaction between the executive and the judiciary in order to achieve the requisite social justice: "There is every justification for the government to forward lists of candidates belonging to di verse sections of the people to the Chief Justice concerned, who has to ultimately scrutinise the list and take his decision on the merit of the candidates without giving room for any criticism that the selection was whimsical, fanciful or arbitrary or t ainted with any prejudice or bias."
President K.R. Narayanan, in turn, echoed this feeling, when he made the extraordinary noting on a file seeking his assent for the appointment of four Supreme Court Judges in November 1998. In granting his approval, the President observed: "While recomme nding the appointment of Supreme Court Judges, it would be consonant with constitutional principles and the nation's social objectives if persons belonging to weaker sections of society like S.C.s and S.T.s, who comprise 25 per cent of the population, an d women are given due consideration." He added: "Eligible persons from these categories are available and their under-representation or non-representation would not be justifiable. Keeping vacancies unfilled is also not desirable given the need for repre sentation of different sections of society and the volume of work which the Supreme Court is required to handle." (Frontline, February 12, 1999)
President Narayanan's anguish should be understood in the context of the non-recommendation of nominees belonging to the weaker sections for appointment to the Supreme Court.
Two successive Chief Justices of India, A.M. Ahmadi and J.S. Verma, failed to recommend the appointment of any Dalit as a Judge in the Supreme Court. In March 1998, CJI M.M. Punchhi recommended the elevation of Justice K.G. Balakrishnan of the Gujarat Hi gh Court to the Supreme Court. But his appointment was held up as the A.B. Vajpayee government made a reference under Article 143 to the Supreme Court for a reappraisal of the procedure for judicial appointments, following a controversy over some of the other nominees recommended by Justice Punchhi.
The nine-Judge Bench's opinion on the reference came in October 1998 after Justice Punchhi's retirement. The Bench essentially broad-based the process of consultation between the Chief Justice and his colleagues by increasing the strength of the colleg ium of Judges from three to five, and insisted that the consultation be recorded in writing. It also held that the government was not bound to accept the CJI's recommendations if they were not based on the consultations process so outlined. The Supreme C ourt's opinion, however, made no attempt to address the concerns subtly articulated by Justice Pandiyan and President Narayanan.
Justice Punchhi's successor, Justice A.S. Anand, while recommending four Judges for elevation to the Supreme Court in 1998, excluded Justice Balakrishnan's name. Justice Anand took the position that Balakrishnan's name could not be considered until he tu rned 55 (he was then 53). Justice Anand came up with this age restriction on the basis of a resolution passed by a conference of Chief Justices that for appointments to the High Court the minimum age was 45, while for the Supreme Court it was 55. The san ctity of this resolution has been called into question in view of some exceptions made in the case of appointments to the High Courts under considerations of "merit".
Justice Balakrishnan was finally elevated to the Supreme Court on June 8, 2000. Only three other Judges belonging to an S.C. have been elevated to the Supreme Court since Independence - A. Varadarajan (1980), B.C. Ray (1986) and K. Ramaswamy (1989) - and there has been no Supreme Court Judge from a Scheduled Tribe. Justice Balakrishnan, who is due to retire on May 12, 2010, may have to wait until January 15, 2007 for his turn to become the CJI. The date of appointment to the Supreme Court is crucial to determining the seniority of a Judge for appointment as the CJI. If more than one Judge is appointed on a single day, their dates of birth are considered to determine their seniority. The date of retirement (on completion of 65 years of age) is another f actor that is taken into consideration in the selection process. The Memorandum on the Procedure adopted for the appointment of the CJI and Judges, in line with the 1993 Supreme Court judgment and the 1998 opinion given by the Court, is considered a clas sified document in the Ministry of Law. But there is every reason to make the procedure transparent, to prevent any bias or arbitrariness in the selection.
THE lopsided appointment process within the judiciary has come under sharp focus in the context following a widely shared perception that there is inadequate representation of S.C.s, S.T.s, and the other backward classes (OBCs) in the judiciary. The Comm ittee on the Welfare of S.C.s and S.T.s, in its report presented to Parliament in March, concluded that only a firm policy on reservation can remedy this problem. The committee, consisting of 20 Lok Sabha members and 10 Rajya Sabha members, is headed by Kariya Munda, a BJP MP from Bihar. Munda told Frontline that as the report is data-based, none could object to its findings.
Asked about the silence of the government and the political parties over the report, Munda remarked: "The government should respond and submit an Action Taken Report in Parliament. We will demand an explanation from the government regarding its stand on our recommendations. I expect the government to respond within six to eight months." He asked, "If you have 80 vacancies all over the country reserved for the weaker sections, is it difficult to find at least 50 eligible candidates for the posts of Judge s?"
Munda's exasperation is understandable. The committee's report says: "The administration of law and justice is intimately linked with the social philosophy of the judiciary and the social philosophy cannot be entirely separated from the social origins of those who dispense justice." The information available up to May 1, 1998 confirmed the committee's perception about the sad state of affairs in the matter of representation of S.C.s and S.T.s in the higher judiciary. The committee was surprised to find that out of 481 High Court Judges, only 15 belonged to a Scheduled Caste and five to a Scheduled Tribe. "The representation of S.C.s and S.T.s in the judgeship of the Supreme Court was nil on that date in spite of the fact that some suitable, eligible an d well-qualified S.C./S.T. candidates were available in the consideration zone," the report said.
This picture with regard to S.C. and S.T. representation, both on the administrative and judicial side, forced the committee to use harsh language. It said: "Judges take oath that they uphold the Constitution and the laws. But the Supreme Court, and a fe w High Courts, by claiming power above the Constitution, practise untouchability and are disobeying the Constitution with regard to Article 16(4) and 16(4)(A)." Article 16 (4) enables the state to make provision for the reservation in appointments or pos ts in favour of any backward class that is not adequately represented in the services under the state. The committee has also questioned the exclusion of the judicial wing from the definition of the state in Article 12.
It recommended that the government make reservation for S.C.s and S.T.s in the matter of appointments of High Court and Supreme Court judges, if need be, by amending the Constitution. It also wondered how Article 15(4) could not apply to the appointment of judges of the Supreme Court and High Courts. Article 15(4) enables the State to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the S.C.s and S.T.s.
At present, the majority of the High Courts have provisions in place for reservation in their services for S.C.s and S.T.s. This has been done by framing suitable rules for recruitment. However, the Supreme Court has not made any such rules. The committe e found the attitude surprising. The Supreme Court Registry informed the committee that the requisite information regarding S.C. and S.T. representation was not available. The report says: "Such secrecy or suppression of information is highly undesirable , which is also a proof of non-observance of reservation. How can the weaker sections of the society have any faith left in such a court?"
THE committee's report coincided with a ruling on March 14 by a Constitution Bench of the Supreme Court, which had, by a three-two majority, held Section 4 of the Bihar Reservation of Vacancies in Posts and Services (for S.C.s, S.T.s and OBCs) Act, 1991 unconstitutional (State of Bihar v. Balmukund Sah). This section sought to impose a scheme of "reservation" for direct recruitment to the posts in the judiciary, subordinate to the Patna High Court. These posts included those of District Judges, a s well as posts in the lower judiciary, subordinate to the District Courts. As the scheme envisaged bypassing the High Court, the Bench held it ultra vires of the constitutional scheme of Articles 233 and 234.
The appointment, posting and promotion of District Judges under Article 233 can be made by the State Governor in consultation with the High Court. Under Article 234, the Governor makes appointments to posts other than those of District Judges to the judi cial service in accordance with rules made by him or her after consultation with the State Public Service Commission and the High Court.
In essence, the majority of Judges, headed by Justices S.B. Majmudar, G.B. Pattanaik and U.C. Banerjee, held that the judicial service did not come within the ambit of Article 309, and that it was exempted from the purview of Article 309 by the overridin g provisions of Articles 233 to 235. In their dissenting judgments, Justices V.N. Khare and R.P. Sethi, held that "public service" contemplated under Article 309, comprehended judicial service as well and that the State legislature was competent to legis late under Article 309 for the judicial service. In the absence of such legislation, the Governor was competent to make rules, they said.
The judgment has caused dismay among those who have been fighting for social justice in the judiciary. Rajeev Dhavan, counsel for the Bihar government in the case, argued:
"In the Mandal case (Indira Sawhney vs Union of India, 1992), executive declaration was challenged, and the Supreme Court justified reservations. The consultative power, envisaged under Article 234, is in relation to actual appointments. It does n ot affect the rule-making power of the executive. The substantive question of whether reservations should be there should remain with the legislature. By curious interpretation, the Supreme Court put restraints on the legislative power of the state, and carved out an exception, saying 'hands off the judiciary'. It is judicial sentiment disguised as law.
"This is a question of drawing a line. Instead of drawing a line, the Court created an entire wall. The judgment has also created an anomaly: for the subordinate judiciary, there would be rules; but for District Judges, there would be none, and the High Court will have the veto."
The struggle to make the judiciary sensitive to social aspirations, it appears, is bound to continue. But are the executive and the legislature prepared to accept the challenge?