Constitution should be amended for reservation in higher judiciary: Justice D. Hari Paranthaman

The Madras high court sitting judge D. Hari Paranthaman demanded constitutional amendments for the reservation in the higher judiciary, while speaking in the seminar on “Social Justice in the Judicial Appointments” organized by the National Lawyers Network (NLN) at Chennai here on Friday (8th January 2016).

In his key-note address, Justice Hari Paranthaman said, “Our Indian constitution was amended more than hundred times. To ensure the social justice in the higher judiciary, it is need of the hour to amend the constitution.

I support the arguments put by Ex. MP Thol. Thirumavalavan in this programme that the competitive examination should be conducted for the selection of judges in the high courts and the supreme court, as the IAS and IPS examinations. The proportionate reservation for all communities should also be provided in this examination and selection mode.

As the prominent figures only two persons raised their voices for the social justice in the higher judiciary, one was former President of India K.R. Narayanan and another was former supreme court judge A.S. Anand before two decades. But the civil society did not support and failed to give shoulders to them. The parliament was also not ready to take note of their demand in support of the social cause.

Whatever may be the words of puzzles advanced by the so-called dominant forces in the form of sugar coated tablet, the reservation in the higher judiciary will be the distant dream, unless and until the constituent is amended.

After the retirement of judges belonged to Dalit community viz., Varatharaj, BC Ray, Ramasamy and K.G. Bala Krishnan, since 2010 there was no room for the Dalit judges in the Supreme Court. Since Independence the Supreme Court accommodated only four judges belonged to Dalit community

In the 150 years of judicial history of Madras high court, it accommodated only six judges belonged to Dalit community so far. In the present strength of Madras high court, does not have a single judge belong to Muslim community. In such a situation, it is unavoidable to raise the question about the social justice.

In the year of 2000, the Committee on the Welfare of SCs and STs in its report presented to Parliament, concluded that only a firm policy on reservation can remedy this problem. It should be noted that the said committee, consisting of 20 Lok Sabha members and 10 Rajya Sabha members, was headed by Kariya Munda, a BJP MP from Bihar. Munda told that as the report was data-based, none could object to its findings.

In the present situation, I would like to remind the Munda committee’s report which clearly told that, “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.”

As on the information available up to May 1, 1998, 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 and well-qualified S.C./S.T. candidates were available in the consideration zone.

This picture with regard to SC and ST 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 few High Courts, by claiming power above the Constitution, practice 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 posts 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 SCs and STs 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 SCs and STs.

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 is to continue. And the constitution should be amended to ensure the social justice in the higher judiciary, Justice Hari Paranthaman said.

National Lawyers Network Joint Convener Adv. A. Mohamed Yusuff in his presidential address, told about the under-representation of the judges belong to Muslim community in the higher judiciary. He said, in the 24 high courts of the country, out of 1044 approved strength, the present strength of the sitting judges are 601 and 443 posts are in vacant. Among the 601 posts, as per the proportionate representation of the concerned states, 86 judges should have been appointed from the Muslim community. But, there are only 26 judges. This is only 3.5%. Moreover, among the 26, 8 will be retire in the current year and 3 will retire in the next year.

As per the 2011 census, Uttar Pradesh accounts 19.3% Muslim population. In Allahabad high court, out of 74 sitting judges, 15 posts should have been filled with Muslim judges. But, there is only 4 Muslim judges. Among 4, one judge Mr. Akhtar Hussain Khan will retire tomorrow (9th Jan. 2016), another one retires this year and third one in the next year.

In Hyderabad high court, out of 27 sitting judges, 3 posts should have been filled with Muslim judges. But, there is only one. He also retires this year.

In Bombay high court, out of 59 sitting judges, 7 posts should have been filled with Muslim judges. But, there is only two. One retires this year.

In Calcutta high court, out of 42 sitting judges, 11 posts should have been filled with Muslim judges. But, there is only two. One retires this year and another one retires in the next year.

In Delhi high court, out of 39 sitting judges, 5 posts should have been filled with Muslim judges. But, there is only two.

In Assam high court, out of 16 sitting judges, 5 posts should have been filled with Muslim judges. But, there is not a single Muslim judge.

In J&K high court, out of 10 sitting judges, 7 posts should have been filled with Muslim judges. But, there is only three. One retires next year.

In Kerala high court, out of 35 sitting judges, 9 posts should have been filled with Muslim judges. But, there is only five. Two retire this year.

In Madhya Pradesh high court, out of 30 sitting judges, 2 posts should have been filled with Muslim judges. But, there is not a single Muslim judge.

In Madras high court, out of 37 sitting judges, 2 posts should have been filled with Muslim judges. But, there is not a single Muslim judge.

In Patna high court, out of 28 sitting judges, 5 posts should have been filled with Muslim judges. But, there is only two. One retires this year.

In Panjab & Haryana high court, out of 50 sitting judges, 2 posts should have been filled with Muslim judges. But, there is not a single Muslim judge.

In Rajasthan high court, out of 25 sitting judges, 3 posts should have been filled with Muslim judges. But, there is only one. He also retires this year.

In Uttarakhand high court, out of 6 sitting judges, 1 post should have been filled with Muslim judge. But, not appointed.

He told, in the case of Supreme Court, out of 26 sitting judges, 4 posts should have been filled with Muslim judges. But, there is only two. They also retire this year.

Adv. Yusuff demanded, while filling the vacancy of 443 posts in the high courts and 5 posts in the supreme court, the proportionate representation should be given all communities including Muslims, SCs, STs and BCs, etc.

NLN State Coordinator Adv. Shajahan, High Court Senior Advocates M. Ajmal Khan, Sathya Chandran, Nagasaila, Viduthalai Chiruthaikal Katchi (Dalit Panthers of India) President Ex. MP Thol. Thirumavalavan, Popular Front of India State President M. Mohamed Ismail, SDPI State General Secretary B. Abdul Hameed, Adv. M.M. Abbas and Adv. Raja Mohamed also spoke in the seminar.

Three-hundred participants from various walks of life such as professors, students, activists, advocates, women, general public participated.

Yours sincerely

Adv. N.M. Shajahan
State Coordinator, NLN

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