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SHOULD THERE BE A RESERVATION SYSTEM IN HIGHER JUDICIARY REGARDING APPOINTMENT OF JUDGES?

Author: Vani Vidushi Gosain, III year of B.B.A.,LL.B. from Symbiosis Law School Hyderabad


India, a diverse country, is home to people of different religions, castes, and creeds. Protecting the rights of the citizens from the acts of the legislative and executive authorities is the Judiciary’s duty. It plays a vital role in interpreting and protecting the Indian Constitution and determining the citizens’ rights. The appointment of judges is crucial for safeguarding the rights of such a diverse population. Thus, the procedure for the same is laid down under articles 124 and 217 of the Indian Constitution for Supreme Court Judges and High Court Judges, respectively.


The Supreme Court of India established the “Basic Structure Doctrine” in Kesavananda Bharathi v. State of Kerala 1972[i], which declared explicitly that Parliament cannot remove or alter the basic aspects of the Constitution, one of which is the independence of the judiciary. In a democracy, the judge must be unbiased and free of extraneous pressures; only then will people have confidence in the judicial process. Politicians, other judges, the media, and other entities wield such power. The nomination of judges in a democratic and equitable way is one of the pillars of judicial independence.Under the collegiums system, Supreme Court judges are generally appointed by a “collegium” comprising of the Indian Chief Justice and the four most senior Supreme Court judges. In the case of High Court appointments, the Chief Justice of the particular High Court will be a part of the collegiums[ii].


There was an instance in 2015 where the Supreme Court refused to grant reservation for Scheduled Castes and Scheduled Tribes in the higher courts by rejecting the petition of a district-level judge from Uttarakhand seeking promotion to the high court[iii]. However, the question of whether there should be reservation in higher Judiciary regarding the appointment of judges for women and backward classes, a contemporary issue pertaining to society, is still unresolved. The first female judge in 1989 in Supreme Court was Justice Fathima Beevi. After her, there have only been ten other female judges in the Supreme Court, an “abysmal representation of women,” as said by Justice Indira Banerjee at the first International Day of Woman Judges. CJI Ramana’s views aligned with Justice Banerjee[iv]. He believed that the gender imbalance should be corrected and that there should be reservations for women in the judiciary and law colleges.


While much has been said, written, and debated about gender bias in appointing top judges and how the job of judges has historically been “monopolized by the male community,” the evident truth of caste-based discrimination in the recruitment of judges in the higher Judiciary is rarely discussed. It is imperative to address caste discrimination and imbalance in appointing judges in the higher Judiciary. The reservation system was established in India to uplift the social and economic conditions of the people belonging to backward castes due to centuries of their subdual. It has been contended that since reservations are provided to the backward classes in other public offices, including the legislature, which makes the law, why is it not provided in the higher judiciary system, which interprets those laws?


The main contention in opposition of reservations in the higher Judiciary system is that it protects citizens’ fundamental rights against the executive and legislative action. As a result, its independence and effectiveness must always be ensured, which may be significantly affected by reservations. In general, calibre is regarded as the primary criterion for appointing the higher Judiciary. In its 14th, 79th, and 18th reports, the Law Commission of India stated that calibre or virtueis the lone standard to be considered for an appointment. The 14th report was critical of selections based on sectarian, political, and regional concerns, which it said, led the citizens and lower judiciary to losefaithin the upper court[v].


It is further asserted that the higher Judiciary must not be compared to the executive or legislative authorities, where the re-election or removal of members is comparatively flexible. Conversely, appointment of judges in the higher judiciary done through the constitution of India make their removal from office nearly unviable.


Reservation regulations in the lower Judiciary led to a diversified bench. However, the higher Judiciary still lacked the representation of certain backward castes. This tendency supports the comment made by different individuals of social importance throughout eons that there is an urgent requirement to create laws introducing reservations for backward classes in the higher Judiciary. Positive action towards the same will result in a judiciary that is sufficiently reflective of the Indian mass.


It must be observed that the Supreme Court’s nominations of judges from backward classes have had some political backdrop driving the Apex Court on an inclusive path on several occasions. Three of the five Dalit Supreme Court judges have been appointed during the tenures of former Union Ministers P. Shiv Shankar and B. Shankaranand, both of whom were members of backward classes. Both took the initiative to include less favoured castes in the higher court, submitting letters to CJIs of High Courts and occasionally even delaying appointments due to a lack of diversity. Justice KG Balakrishnan, the Supreme Court’s fourth judge from the SC community, was appointed after India’s first Dalit President, President KR Narayanan, actively lobbied for the inclusion of justices from historically disadvantaged communities.


P. Wilson raised before the Rajya Sabha, the Supreme Court’s “diversity deficit,” which questions the integrity of the existing system and its failure to recruit from diverse social groups while ensuring social justice[vi]. He urged parliament to intervene to ensure social justice and diversity and the government to implement appropriate steps to address the under-representation of female judges and judges from unjustly oppressed castes. He wrote to Ramnath Kovind, the previous President, stressing the requirement for diversity in the higher court, citing the “disturbing trend” of the falling presence of all social groups in the Supreme Court.


In the researcher’s view, a reservation system for women and backward classes in the higher Judiciary should be introduced. The rationale for the same includes a gender imbalance in the higher Judiciary. There have only been eleven female judges in the Supreme Court compared to many male judges. Further, no factual data represents a percentage of the caste of judges appointed in the higher Judiciary. It is impossible to know thepercentile of Brahmin and advanced caste judges who have been appointed to the higher Judiciary, though it is plausible to infer that they outnumber judges from backward classes. The Supreme Court is the highest authority in India which determines the rights of the diverse population of the country. Therefore, judges must be selected from all walks of the society to shoulder the “law of the land.” A more inclusive judiciary will provide a fresh outlook on critical matters concerning the rights of the marginalized population.


A diverse judiciary will be a balanced judiciary, likely to encourage candid, un-biased, and broader debate on constitutional issues, particularly those affecting backward classes, women, and non-binary individuals of the society. A judge from these groups is more likely to grasp their communities’ specific issues. The presence of female and trans judges will raise awareness among male judges. Further, youth belonging to these communities will be inspiredto attain higher achievements in the profession. This is probable with the help of a well-drafted statute that does not jeopardize the independence and quality of the court, which are necessities.

[i]Kesavananda Bharathi v. State of Kerala, (1972) SCC 364. [ii]S.R. Prabakaran, Reservation in Higher Judiciary a Level Playing Field for Underrepresented Communities, 2 International Journal for Legal Developments and Allied Issues 119. [iii]Bhadra Sinha, SC Refuses to provide SC/ST Reservation in Higher Judiciary, Hindustan Times (Nov. 9, 2022, 9:30 AM). [iv]Business Standard, https://www.business-standard.com/article/current-affairs/just-11-women-sc-judges-since-1950-abysmal-number-justice-indira-banerjee-122031001512_1.html#:~:text=We%20have%20all%20recently%20celebrated,judges%20in%20the%20Supreme%20Court. (Last visited Nov.20, 2022). [v]Rhythm Buaria, Need for Reservation in the Higher Judiciary of India, Live Wire (Nov. 9, 2022, 10:00 AM), https://livewire.thewire.in/politics/need-for-reservations-in-the-higher-judiciary-of-india/. [vi]TheHindu,https://www.thehindu.com/news/national/tamil-nadu/constitution-does-not-provide-for-reservations-in-appointment-of-sc-judges/article32901244.ece (Last visited Nov. 9 10:20 AM).

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