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: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.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.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...

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

LiveLaw Research Team

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