Supreme Court Advocates-on-Record Association and Others
Union of India and Others
1993 – 4 SCC 441
(Known as second Judges’ case)
Hon’ble Mr. Justice S. Ratnavel Pandian, who presided over the 9 Judges Bench, at page 576 para 224 observed as under:-
“I venture to express that the right of entry into superior judicial office is not the exclusive prerogative of any particular coterie or privileged class or group of people. To say differently, it is neither inheritable nor a matter patronage.
In para 225
“The above view of mine regarding the inadequate representation of various sections of people is neither illusory nor imaginary but is the actual and real existing fact and it is fully fortified by the following statements made in the Parliament by the Minister of Law, Justice and Company Affairs pertaining to the OBCs, STS, SCs and women Judges in the Supreme Court and High Courts.”
Para 230 at page 578 –
“If the vulnerable sections of the people are completely neglected, we cannot claim to have achieved real participatory democracy. Therefore, there is every justification for the Government to forward lists of candidates belonging to diverse sections of the people to the Chief Justice concerned, who has to ultimately scrutinize 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 tainted with any prejudice or bias. ……”
Indra Sawhney Vs Union of India
1992 – Suppl. 3 SCC 217
Hon’ble Mr. Justice P. S. Sawant
Para 401 at page 504
“If that machinery is not sympathetic to the purpose of the exercise, the political power becomes ineffective, and at times is also rendered impotent. The reason why, after forty four years of Independence and of vesting of political power in the hands of the people, the same section which dominated the nation’s affairs earlier, continues to do so even today, lies here. ….”
Para 405 at page 506:
“Can the advantages gathered gained on account of the superior social circumstances be put in the scales to claim merit and flaunted as fundamental rights?….”
Para 406 at page 507:
“…. A policy of deliberate reservations and recruitment in administration from the lower classes, who form the bulk of the population and whose problems primarily are to be solved on a priority basis by any administration with democratic pretensions, is therefore, not only eminently just but essential to implement the Constitution, and to ensure stability, unity and prosperity of the country.”
Para 414 at page 509:
“The enjoyment – whether private or public – thus, is a means of social leveling and when it is public, is also a means of directly participating in the running of the affairs of the society. A deliberate attempt to secure it to those who were designedly denied the same in the past, is an attempt to do social and economic justice to them as ordained by the Preamble of the Constitution.”
Para 416 at page 510:
“The trinity of the goals of the Constitution, viz., socialism, secularism, and democracy cannot be realized unless all sections of the society participate in the State power equally, irrespective of their caste, community, race, religion, and sex and all discriminations in the sharing of the State power made on those grounds are eliminated by positive measures.”
Para 421 at page 513:
“… To achieve total unity and integration of the nation, reservations in employment are, therefore, imperative, in the present state of our society.”
Para 419 at page 515:
“Equality postulates not merely legal equality but also real equality….”
“As Dr. Ambedkar has stated in the same reply, the purpose of the clause (4) was to emphasise that there shall be reservations in favour of certain communities which have not so far had a ‘proper look-in’ into, so to say, the administration.”
Hon’ble Mr. Justice B. P. Jeevan Reddy
Para 778 at page 712:
“….The Constitution was meant for the entire country and for all time to come…”
Paa 788 at page 720:
“…. the idea was to enable them to share the state power.”
Para 836 at page 751:
“….it cannot also be ignored that they very idea of reservation implies selection of a less meritorious person. At the same time, we recognize that this much cost has to be paid, if the Constitutional promise of social justice is to be redeemed…”
Para 854 at page 764:
“… In human affairs, such as this, perfection is only an ideal — not an attainable goal. More than forty years have passed by. So far, no reservations could be made in favour of OBCs for one or the other reason in Central services though in many States, such reservations are in force.”
The Report of the Karia Munda Committee dated 15.3.2000
In para 1.11, the Committee recommended as follows:-
“From a general survey of the present state of affairs in the country the Committee find that a firm policy of reservation is the only remedy. The Government in practice has, however, adopted the policy of ‘Running with the hare and hunting with the hounds’ in regard to the question of implementing the reservation policy. This stance of the Government must change. The Committee, therefore, recommended that the relevant Articles, i.e., 124 and 217 of the Constitution may be amended suitably to include especially judiciary wing of the State within the ambit of reservation, and simultaneously a judiciary. Act may be enacted to spell out the governing principles of the proper functioning of the Judiciary especially the Supreme Court and the High Courts.”
The Committee chaired by Dr. E. M. Sudarsana Nachiappan
The Committee made the following recommendation in para 22.32 as under:
“Without needing any further constitutional amendment, the provision for reservation in the higher judiciary has already been included in Article 14 and 15 of the Constitution. Most specifically Article 15(4) provides for special provisions for Backward Classes, SCs and STs, which special provision necessarily includes representation of these groups in higher judiciary. Since the procedure for selection and appointment of Judges has not been laid down explicitly unlike in the case of legislature and executive, the application of Articles 14 and 15(4) could not be provided explicitly, the fact that the implied procedure did not bring about the ‘adequate representation’ of these classes only shows the failure of the present implied procedure. Since the Constitution has to be read and interpreted harmoniously and holistically, an interpretation of Article 124, 216 and 217 should have to take into consideration the provision under Article 14 and 15(4) and the basic feature of democracy, equality and secularism, which necessarily includes provision for adequate representation in the higher judiciary.”
- By its judgment of 16. 10. 2015, the Supreme Court struck down the National Judicial Appointments Commission Act, unanimously passed by the Parliament.
- the Collegium of the Supreme Court will select candidates for appointment as judges of the Supreme Court, and
- the collegiums of the High Courts will select candidates for appointment as judges of the respective High Courts.
- At present, in the Supreme Court
- There is not a single judge of the SCs
- There is not a single judge of the STs
- There are only two judges of the Socially and Educationally Backward Classes (SEdBC)
- There is only one woman judge
- At present, in the High Courts
- The number of SC judges is negligible
- The number of ST judges is very negligible
- The number of SEdBC judges is disproportionately very small
- The number of women judges is also nominal
- In the country, 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;
- 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 (NSCTBC) castes.
- There are
- Four vacancies in the Supreme Court
- Nearly 400 vacancies in the High Courts
- It is necessary that these vacancies are filled in the proportions mentioned above, i.e., 15%, 7.5% and 27%
and one-third women from these three categories in the same proportion
and the rest from the NSCTBC castes
- The collegiums need to be requested to follow this Constitutional imperative.
- According to Hon’ble Justice Mathew, in the Kesavanada Bharati case [1973 Suppl. SCR 1] and inM. Thomas case [(1976) 2 SCC 310 : 1976 SCC (L & S) 227], the term “State” in Article 12 covers the judiciary also.
- The Constitutionally correct observations of Hon’ble 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 judgment of Hon’ble Justice Sawant and the judgment of Hon’ble 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. Those judgments upheld the Constitutional validity of reservation for SEdBCs 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, on the face of it and as clarified beyond doubt by the Supreme Court itself per Hon’ble Justice Mathew.
What they said about SEdBCs applies certainly to SCs and STs also
(Extracts of judgments at para (10) and (11) enclosed).
- Recently on the 26th and 27th November, spilling over to one or two subsequent days, the Lok Sabha and Rajya Sabha celebrated the Constitution Day and unanimously passed a Resolution committing themselves to the Constitution and its principles and specifically mentioned Equality and Social Justice in that Resolution.
During the debate some of the MPs also wanted the gross imbalance with regard to the absence / negligible presence of SC, ST and BC in the higher judiciary to be rectified.
- The new Hon’ble Chief Justice of India Shri T. S. Thakur, on the eve of his assuming office, speaking at the outgoing Hon’ble Chief Justice of India L. Dattu’s farewell on 2.12.2015, made the following observations
- It is a major challenge to dispel the people’s negative perception about the collegium’s function
- He would try to dispel the impression of nepotism and favouritism in the judges appointment process.
- One of his two priorities is to infuse transparency in the appointment of judges through the collegiums system
(as reported in Indian Express Delhi edition by Amit Anand Choudhary. “New CJI focuses on clean collegiums, faster disposal”, Indian Express, 3.12.2015)
- The Hon’ble Law Minister in his written reply on 3.12.2015 in the Lok Sabha to a question of a number of Members stated :-
- “Parliament shall have the power within the parameters of the Constitution to govern the criteria and process for appointment of judges to Supreme Court and High Courts”
- The Government has submitted its suggestions to the Supreme Court regarding appropriate measures to improve the working of the collegium system
- “The government has taken the stand that it reserves its liberty to take such action as it may decide fit and nothing in the suggestions made by the Government or participation in the proceedings ought to be construed as the government being stopped from such action.” [“Parliament has power to govern criteria to appoint judges: govt”, Indian Express, 4. 12. 2015)
- The Hon’ble Prime Minister, before the election for the 16th Lok Sabha, made the significant and correct observation and commitment at Kochi on 9. 2. 2014, on the occasion of the centenary celebration of the historic Kayal Samaram (Lake Struggle) of the Dalits, that the Dalits, Adivasis and Backward Classes have not got their due share in the last 60 years and he will taken upon himself to fulfill them. Similar commitments were made by him on different occasions and different places before and after he became the Prime Minister.
- The Hon’ble Prime Minister and Hon’ble Law Minister may kindly consider and write to the Hon’ble Chief Justice of India (CJI) who heads the Supreme Court collegium and the Hon’ble Chief Justices of all the High Courts who head the respective High Court collegiums to fill up the vacancies in the Supreme Court and High Courts as follows:-
- Of the four vacant posts in the Supreme Court,
- One be filled with the senior-most SC judge of the high courts in the country as there is not a single SC judge in the Supreme Court
- One be filled with the senior-most ST judge of the High Courts in the country as there is not a single ST judge in the Supreme Court
- One be filled with the senior-most BC judge of the High Courts in the country as there are only two BC judges in the Supreme Court
- The fourth vacancy be filled with the senior-most woman judge of the High Courts in the country as there is only one judge in the Supreme Court..
These four vacancies can and need to be implemented and filled as above immediately, say before the year is out, as a good augury for the new year.
- Future vacancies need to be filled up in such a manner that the backlog is covered and the Constitutional proportions mentioned above are achieved.
- Of the vacant posts in the High Courts,
- 15% be filled with SC candidates from the senior-most district judges and from SC Advocates, who fulfill the Constitutionally prescribed qualification
- 5% be filled with ST candidates from the senior-most district judges and from ST Advocates, who fulfill the Constitutionally prescribed qualification
- 27% be filled with SEdBC candidates from the senior-most district judges and from SEdBC Advocates, who fulfill the Constitutionally prescribed qualification.
In States, where SEdBCs have been categorized, candidates from each of those categories be ensured.
The Centre where there is no categorization of SEdBCs should introduce categorization into Backward , More Backward, Most Backward and Extremely Backward castes of SEdBCs as recommended by the NCBC and by the best expert in this field Shri P. S. Krishnan, IAS (Retd) on numerous occasions and in different fora.
The Centre should write to the Chief Ministers of States, where there is no categorization like Uttar Pradesh, to introduce similar categorization.
- One-third be filled with women candidates who fulfill the Constitutionally prescribed qualification from the senior-most SC, ST and SEdBC district women judges and women Advocates who fulfill the Constitutionally prescribed qualification in the same proportion as above,
- and only the rest from NSCTBC.
- The Prime Minister and Law Minister may kindly consider and also write to the Hon’ble CJI and the Hon’ble Chief Justices of High Courts that
The laudable and correct objectives spelt out by the new CJI on 3.12.2015, as mentioned at para 13 above, can be fulfilled
- by filling up the vacancies in the Supreme Court and High Courts as above, and
- Children, nephews and nieces and other close relatives of existing and previous judges are not selected by the Collegiums at least until after the proportion of SCs, STs, BCs and women reach the level of the percentages mentioned above
- The Prime Minister and Law Minister may kindly consider and also write to the Hon’ble Chief Justice of India and the Hon’ble Chief Justice of High Courts that
- Only the qualifications prescribed in the Constitution should be taken into account
- In assessing candidates from the bar, cases pertaining to income tax, customs , excise and the like and the value of income from such cases should not be taken into account
- Weightage should be given to cases undertaken by the candidates to defend the rights of SCs, STs, SEdBCs, women, children, the disabled, bonded labourers, Safai Karmacharis and defence of reservation and in defence of other issues of Social Justice and against “Untouchability”, atrocities against SCs and STs, crimes against women and children.
- In considering High Court judges for appointment to Supreme Court, judges who have shown ignorance of or have ignored the basic facts of the Constitution should be straightaway disqualified.
- Judges who say that there is a 10-year limit in the Constitution for reservation confusing the 10-year limit (extended from time to time) for reservation in seats in the House of the People and the State Legislative Assemblies with reservation in employment, education etc. for which no time limit has been fixed.
- Judges who express the off-hand opinion that reservation has destroyed progress, bracketing it with corruption,
contrary to the Supreme Court’s judgments upholding Reservation, and
contrary to the historical fact that the States of the peninsula which introduced reservation the earliest, from even before Independence, have made relatively greater progress compared to States which unconscionably and unconstitutionally delayed reservation for SEdBC.
- Writing by the Hon’ble Prime Minister and the Hon’ble Law Minister as requested above is
- in keeping with the Hon’ble Law Minister’s written reply on 3.12.2015 in the Lok Sabha, as mentioned at para 14 above, which needs to be translated into action.
It is not known whether in the suggestions that the Government has submitted to the Supreme Court, as mentioned by Hon’ble Law Minister in his written reply, reservation for SC, ST, SEdBC and women is included. If not, it is a lacuna and needs to be made good by writing as above.
- in keeping with the commitment made by the Hon’ble Prime Minister at Kochi on 9.2.2015, and subsequently before and after he became the Prime Ministers, as mentioned at para 15 above.
- in keeping with the Resolutions passed by the Lok Sabha and Rajya Sabha unanimously by all Parties after the discussions on Constitution Day, on 26th and 27th November 2015 spilling over to one or two days, binding themselves to commitment to the Constitution and its principles including specifically Equality and Social Justice.
- in keeping with, and the long-delayed implementation of, the recommendations of the Karia Munda Committee in para 1.11 of its Report dated 15. 3. 2000 and the Committee chaired by Dr. E.M. Sudarasana Nachiappan in its Report submitted in August 2007 (relevant extracts enclosed)
The recommendations of both these Committees have been unconscionably kept in the cold storage for long till now. This neglect should not be continued.
The commitments made by high dignitaries like the Hon’ble Prime Minister (during the election campaign and after he became the Prime Minister), the Law Minister, and the new CJI and the Lok Sabha and Rajya Sabha resolutions should not be allowed to remain on paper but translated into action as above so that people’s confidence, especially the deprived classes’ confidence in them and in governance, is restored and strengthened.
- (a) In the judgment rendered on 13. 11. 1991 by a 3-Judges Bench in the All India Judges Association Vs Union of India (1992 – 1 SC 119), in para 63 (i) at page 140, the Supreme Court directed that
“an All India Judicial Service should be set up and the Union of India should take appropriate step in this regard”
(b) The Parliament enacted Constitution (Forty-second Amendment) Act 1976, Section 45 (w.e.f. 3.1.1977), inserting the terms “including an All India Judicial Service, common to the Union and States, as one of the All India services, the parliament may, by law, create”.
(c) The Government of India has failed to move for the creation of the All India Judicial Service though nearly four decades have passed.
(d) If that Service had been created promptly, it would have automatically had the reservation provisions as for all other All India services and by now, we would have had a large rich reservoir of experienced High Court judges of the SC, ST, SEdBC and women, some of whom would have found place in the Supreme Court in fair proportions.
(e) This failure and neglect should not be continued and the Hon’ble Prime Minister and Hon’ble Law Minister may kindly consider and immediately move a legislation in the Parliament for creation of the All India Judicial Service.
- The High Court judges who are appointed now will retire only after 15 or 20 years. Therefore, if these posts are filled up as in the past, ignoring SCs, STs, SEdBCs and women in the prescribed proportions, the door will be closed to them for a long period. Therefore, it is imperative to implement the Reservations as proposed.
- The Hon’ble Prime Minister and Hon’ble Law Minister may kindly consider and positively move the Hon’ble CJI and Hon’ble Chief Justices of High Courts as requested above and use their powers as the Executive under the Constitution and move the Parliament to use all its powers to ensure the above reservations in the High Courts and the above proposal regarding filling up the vacancies in the Supreme Court, and move the Parliament to use its powers, if necessary, to enforce them.
- Finally, the Hon’ble Prime Minister and the Hon’ble Law Minister are requested to take all steps to ensure that SC, ST, SEdBC, women are appointed in the four vacancies of the Supreme Court and the backlog is subsequently filled up and reservation is implemented for SC, ST, SEdBC and women as requested above in filling up the approximately 400 High Court vacancies.
Failure will be seriously letting down the legitimate interests of the SC, ST, BC and women and will be a historical failure, which will be a black mark on our system and will be seriously resented by these deprived classes and gender.
This is not only a matter of the right of the SC, ST, SEdBC and women, but their presence in due proportions on the Benches of the High Courts and Supreme Court will bring to the Benches diverse experiences and enrich its perspective and approach.
- P. S. Krishnan, IAS (Retd) -Former Secretary to Government of India,
- Shri Annam Subha Rao – Senior Advocate, Supreme Court of India