Adv C Ahamed Fayiz
The role of the judiciary is to make decisions in accordance with the letter of the law. While the law formulates general regulations, legislations allow enough discretion to the judiciary to exercise their independent reasoning and provide justice to the unique factual circumstances in individual cases. It is in exercising this discretion that judges draw from their own worldview and personal experiences. A monolithic, homogeneous worldview of the judiciary would not adequately be able to do justice to our pluralistic society where each citizen occupies a different political position based on different type of hierarchies. In India caste plays a major role in the formation of socio-political hierarchy which has been taken into account in various instances from birth to death of an individual. Judiciary too is not exempted from this bias based on caste. For instance, it has been observed by many that the low rates of conviction for crimes committed against members of the Scheduled Caste and Scheduled Tribe communities is considerably due to the privilege of the largely upper-caste judiciary which does not understand the routine violence and systemic oppression meted out to lower caste communities. Many researches have also revealed that marginalized socio-economic sections especially SC and ST persons are more disparately impacted by death penalty convictions. Taking these inferences, this paper attempts to evaluate the statistical representation of judges from SC and ST communities in judiciary and tries to analyze whether their under representation/absence has any impact in judgment delivery mechanism of courts. This paper also critically looks at how caste played a decisive role in appointment of judges to Supreme Court of India, based on Indian legal history and puts forward a new way out to have adequate representation of these depressed communities based on international practices followed in judicial appointments.
Keywords: Caste, Judicial Appointments, Indian Judiciary, Dalit, Adivasi
The role of the judiciary is to make decisions in accordance with the letter of the law. While the Constitutition formulates general regulations, legislations allow enough discretion to the judiciary to exercise their independent reasoning and provide justice to the unique factual circumstances in individual cases. It is in exercising this discretion that judges draw from their own worldview and personal experiences. How far the monolithic, homogenous worldview of the judges who come from the same life backgrounds would influence the judgements. How far these judges could adequately be able to do justice to our pluralistic society where each citizen occupies a different political position in the hierarchies of gender, caste, religion, region, class, culture, ability and sexuality are the questions that need to be pondered upon.
For instance, let us look towards the question why there are low rates of conviction for crimes committed against members of the Scheduled Caste and Scheduled Tribe communities1. Or, why persons from marginalized socio-economic sections especially SC and ST persons are more disparately impacted by death penalty convictions2. Is it considerably due to the privilege of the largely upper caste judiciary which does not understand the routine violence and systemic oppression meted out to lower caste communities?
Notably, last year Supreme Court of India had given out a verdict which weakened SC ST Prevention of Atrocities Act by citing the misuse of the said law. The Supreme Court took a view on March 20, 2018, banning automatic arrests and registration of cases of the accused under the SC/ST Act. It also introduced the provision of anticipatory bail if the complaint was found to be malafide. It is to be noted that there was no single judge from SC-ST communities on the bench which proclaimed the above said judgment which has been widely criticized and even caused the death of nine persons in the bandh declared against the verdict. There has been widespread criticism that the low rates of conviction for crimes committed against members of the Scheduled Caste and Scheduled Tribe communities is considerably due to the privilege of the largely upper caste judiciary which does not understand the routine violence and systemic oppression meted out to lower caste communities. There are many cases (which will be discussed below) reported from various High Courts in which the courts acquitted the accused in case of casteist insults, assaults and violence citing feeble reasons. It may be instructive to look at some judgments of courts which dealt with the offences under the Protection of Civil Rights Act, 1955 (PCRA) and the SC/ST (Prevention of Atrocities Act, 1989 (Atrocities Act). Basing on inferences from cases, this paper looks into the statistical representation of judges from SC and ST communities in judiciary and tries to analyze whether their under representation/absence has any impact on judgment delivery mechanism of the court. This paper tries to put forward the need of diversity in courts and also critically look at how caste played a decisive role in appointment of judges to Supreme Court of India based on Indian legal history and puts forward a new way out to have adequate representation of these depressed communities based on international practices followed in judicial appointments.
How the Courts Viewed Casteist Insults, Assaults, Violence
In E. Krishnan Nayanar vs Dr M A Kuttappan3, the Kerala High Court held that no offence under PCRA can be made out as it cannot be said that “the complainant was insulted or attempted to be insulted on the ground of untouchability” even though the statute provides that an act against a person belonging to the Scheduled Caste category shall be presumed to be on the ground of untouchability. Coming to the Atrocities Act, the Court ruled that though the incident was admittedly in public view, yet the offence of insult or humiliation was not complete, as the complainant Kuttappan was not present at the public meeting. The court went on to observe that it was only offences like dumping excreta, waste matter, and carcasses within the premises of a member of the SC community, which need not necessarily be done in the presence of the person insulted.
In Phulsing vs State of Madhya Pradesh4 the court decreed that even a “casteist” abuse hurled at a member of a Scheduled Caste might not amount to insult on ground of “untouchability”, if there are other issues involved between the parties. In State of Karnataka versus Irappa5 the Karnataka High Court in a case where separate cups and saucers were kept for Dalits, acquitted the hotel proprietor on the grounds of a 12-hour delay in filing the complaint, the prosecution witnesses being related to each other and that the complaint did not specifically mention that the accused had kept the utensils separately.
In Bhanwari Devi’s (an OBC woman from the lower caste Kumhar, potter, community) case, who had successfully prevented the marriage of the one-year old daughter of Ram Kanwar Gujar, the reaction of the District and Sessions judge was astonishing and embarrassing which clearly shows the casteist mindset prevalent among judicial officers. Bhanwari Devi worked as a saathin or volunteer in a government scheme for the prevention of child marriages in Rajasthan. On 22 September 1992, while working in the field with her husband, a gang of five higher caste men (who also beat her husband unconscious) raped Bhanwari Devi for her attempts to intervene in child marriages in the village, as part of her job. Bhanwari Devi started fighting for justice against this brutal violence. The District and Sessions judge of Jaipur on November 15, 1995, delivered the judgment. According to the judge, the accused are middle-aged and therefore respectable citizens, while teenagers usually commit rape. The judgment goes on to declare. “Since the accused are upper caste men, the rape could not have taken place because Bhanwari was from a lower caste”6.
Soon women’s groups in Rajasthan and an NGO called Vishakha, which was associated with them, took up her cause. This led to a series of events that resulted in the landmark Vishakha and others V State of Rajasthan Supreme Court judgment (1997). It was this judgment that formulated the Vishakha Guidelines that put forward a set of parameters to be used in cases of sexual harassment in the workplace. In 2013, the parliament replaced this with the Sexual Harassment of Women (Prevention, Prohibition and Redressal) Act. Bhanwari Devi, however, has yet to get justice in her case against the men who raped her, even after two decades. In Vishakha Guidelines which were a resultant verdict after the tragic incident caused to Banwari Devi, we can see the irony that the issues of urban –upper class women were highlighted. The issues faced by lower class women in the field was left unaddressed both by the court and legislature. The Workplace Harrasment Act was passed which has not addressed the issues of Dalit and Adivasi women who are working in the unorganized sector. However, without giving a thought to the caste/class composition of the women that constitutes the majority in India, the provisions of the Vishakha Guidelines were formulated by the court in such a way that it places the entire responsibility for the prevention of sexual harassment on the employer/institution. And thus, as Maitreyi Krishnan and Ponnu Arasu points out, the Vishakha Guidelines came to apply “only to an organized office set-up, and not to the unorganized sector where the employer-employee relationship is not fixed”.7 Therefore, the very moment that the Vishakha Guidelines were framed, it also worked to push out lower caste women like Bhanwari Devi from its ambit8.
Brahminic Influence in Judicial Appointments: What do the statistics say?
Taking inference from the cases discussed above, it is evident that caste bias plays a big role and influences the judgment delivery mechanism adversely. There are some researchers9 who argue that self-correction by judges is the only recourse to counter biases and prejudices based on caste, class, religion, gender and sexual orientation. But here I argue that apart from self-correction, there is a need for adequate representation of Dalits and Adivasis in the benches which considers the cases related to them. Moreover, there is also the need for adequate representation of judges from these underrepresented communities. And therefore, it is important to critically ponder upon how caste plays a decisive role in the judicial appointments–especially to High Court and Supreme Court–based on the history of judicial appointments, moving away from the merit argument.
There are only a few scholarly research papers on judicial appointments from Indian scholars–like Rajeev Dhavan and Alice Jacob10, S P Sathe11—who studied the background of each judge, the reason behind the appointment of each judge, who appointed whom etc. As the whole process of judicial appointments still remains12 opaque even though the collegiums had started to publicize their resolutions recently. There are many unwritten critieria14 and factors, which influence the judicial appointments other than the written qualifications stipulated under Indian constitution. Caste plays an important role in it. It was George H Gadbois Jr15 in the 1980s, who studied on such an issue, though not particularly focusing on it, but doing extensive interviews with almost every judge who served the Supreme Court of India from 1950 to 1989. His attempt was to sketch the biographical portrait of every judge which is unavailable both in public and even in governmental records. Gadbois conducted over 116 interviews with more than 66 judges of the Supreme Court of India—19 of whom had served as the chief justice. According to the analysis of Gadbois, Brahmins who constitute one nineteenth of the nation’s population, held 42.9 % of the judgeships. Non-Brahmin forward castes constituted 49.4 % while OBCs just 5.2 % and the situation of Dalit and Adivasi communities are abysmal–they held just 2.6 % and 0.0 % of judgeships respectively, until 198916.
Gadbois notes that “The usual explanation for the overrepresentation of Brahmins is that they were the privileged group before the British arrived, that they were the first to learn English and take advantage of modern education and as a result, quickly secured high positions in the professions, law in particular, where English was the language of the courts. Scheduled Castes and Tribes has received any education in English until after independence. Those who would come to be designated OBC were hardly much better off” In 1983, the then law minister told parliament that of nearly 400 high court judges, six were members of Scheduled Castes and there were none from the Scheduled Tribes wrote Gadbois17, quoting a report of The Hindustan Times18. Gadbois concluded his opinion regarding the role of caste in judicial appointments saying that there is a lack of convincing evidence to prove Brahmins were preferred because of their caste and also argued that Judges of the higher rank in all or nearly all nations will not be representative of the social make up of their country as a counter argument. But what Justice V R Krishna Iyer has written in his book Law Versus Justice19 counters the conclusion remark put forwarded by Gadbois regarding preferential treatment towards Brahmins and other forward castes in judicial appointments. How judges are selected is evident from what Krishna Iyer wrote: “I remember one Chief Justice telling me long ago that he owed his position to his caste and so would, gratefully, help his caste”.
Only three other Judges belonging to a Scheduled Caste have been elevated to the Supreme Court since Independence – A. Varadarajan (1980-1985), B.C. Ray (1985-1991) and K. Ramaswamy (1989-1997) – and there has been no Supreme Court Judge from a Scheduled Tribe20 during 1950-1989 –the period which Gadbois focused on. Even though three decades have passed after the study of Gadbois, only one person from Dalit community-Justice K.G Balakrishnan(2000-2010)-has been elevated to the Supreme Court of India. It is to be noted that there is not a single judge in the Supreme Court of India from the SC community after K.G Balakrishnan completed his term as first Dalit Chief Justice of India since Independence.
Caste in Judicial Appointments: Former Supreme Court Judges Reveal the Truth
Normally, Judges would not entertain any interviews nor do they open up their mind on their official life. Except a few, most of them keep near silence on official secrets especially on the secrecy of judicial appointments even in their autobiographies. But, throughout the interviews they had with Gadbois, they were surprisingly forthcoming and he took down detailed notes. Relying on these notes, Abhinav Chandrachud, a writer and lawyer at the Bombay High Court, wrote a book21. The book covers a range of issues discussed during the conversations, including judicial rivalries, the lack of dissenting judgments, the judicial backlog and workload of judges, as well as judges who declined offers of elevation to the Supreme Court. Chandrachud had referred to Gadbois’s conversations with judges about the role and influence of caste identities in the decisions to appoint judges to the higher judiciary which is revealed in the last chapter of the book titled Criteria for Selecting Judges22.
In June 1983, Justice Rajagopala Ayyangar told Gadbois that the backward community got all the advantages, that there were only a handful of Brahmins at the Madras High Court at that time. Justice AP Sen told Gadbois that Brahmins used to dominate the judiciary at Calcutta, Bombay and Madras, but that caste was not a factor in the decision-making of courts. Justice P Jaganmohan Reddy believed that Brahmin judges were more conservative than others, because the whole Brahmin ethos was conservative. In 1980, Justice Krishna Iyer, who has written about the role of caste in judicial appointments (supra) said that the Supreme Court was mainly Brahmin and upper class (no Scheduled Caste judge had been appointed to the court at that time). Contrary to Justice AP Sen’s opinion, he concluded that judges’ backgrounds affect their decisions. Justice Madon added that since the time of Chief Justice PB Gajendragadkar, Brahmin judges from Bombay were preferred at the Supreme Court. He seemed to be especially angry with Chief Justice [YV] Chandrachud for seeking to appoint Brahmin judges from Bombay to the Supreme Court. He said that many High Court Chief Justices made recommendations for judicial appointments on caste considerations and that it was not only the government which was doing so.
The book says that Gadbois even made a note in the margin of his transcript that “Some Brahmin judges [are] very much aware of other Brahmins in high posts.” In 1988, Justice Khalid hailing from Kannur state of Kerala, criticised the Brahmin dominated Supreme Court and suggested that both Chief Justices Chandrachud and Pathak preferred Brahmin judges. Justice Hidayatullah said that his name was proposed for appointment to the Supreme Court ahead of Justices K Subba Rao and KN Wanchoo, but that Nehru pushed him down in favour of Wanchoo, a Kashmiri Brahmin.
Quoting the Gadbois interviews, Chandrachud says that apart from Judges, several law ministers and politicians too brought caste considerations into judicial appointments. The book reveals how the executive preferred upper class, especially Brahmins, in the top most posts of Indian judiciary. For example, the book says that Chief Justice Sinha accused Home Minister G.B.Pant of favoring a Brahmin candidate for appointment to the Supreme Court in the 1960s23. There is also an astonishing revelation about senior advocate Shanti Bhushan who became law minister after the Janata government came to power in 1977. Several judges revealed that he made a large number of high court appointments on the basis of caste, preferring judges from the bania caste24. Prime Minister Morarji Desai did not like Bhushan at all and he had told Chief Justice Chandrachud this several times. It was Bhushan who, as law minister, essentially set a precedent for making judicial appointments along caste lines.
The importance of Representation of Under-represented Communities in Nominatiing Panel of Judges
There are some ministers who played an important role in the appointment of SC and OBC judges. In August 1980, Law Minister Shiv Shankar (who is from OBC community) wrote a letter to high court chief justices requesting that more Scheduled Caste and Scheduled Tribe judges be appointed25. In 1988, B. Shankaranand (from SC Community) who was then law minister, held up several appointments on account of his insistence on appointing Scheduled Caste judges,26 and was partly the reason that Justice S. R. Pandian, a judge from OBC category, was appointed to the Supreme Court27. Moreover, Chief Justice Pathak informed Gadbois that the same B. Shankaranand wanted judges from the Scheduled Castes to be appointed to the Supreme Court, and thus held up the nomination of N. P. Singh who is a Bhumihar Brahmin.
The trend of appointing Brahmin judges decreased during the tenure when Shiv Shankar and Shankaranand became Law ministers as noted by Gadbois in his book: “As forty years drew to a close, there began a major change in the caste composition of the court. Following the appointment of N.D Ojha in January 1988, there was not a Brahmin among the next dozen appointments. The explanation for this turnaround was the fact that B. Shakaranand of the SC community and P. Shiv Shankar of the OBC community were law ministers in 1988 and 1989”28. Moreover, three among the four Dalit judges and the first OBC judge Justice S. R. Pandian were elevated to Supreme Court during the term of the above mentioned law ministers. This denotes that, whether it is National Judicial Appointments Commission or any other system, the representation of underrepresented communities in the nominating panel of judicial appointments is important. One more example can describe the need for such representation–what happened in the appointment of former Chief Justice K.G Balakrishnan.
Justice K.G. Balakrishnan was elevated to the Supreme Court because the then President of India, K. R. Narayanan (who is the first Dalit President of India) 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 recommending 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, and women are given due consideration.” He also added that “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 representation of different sections of society and the volume of work which the Supreme Court is required to handle.” (Frontline, February 12, 1999.)29
Even though the elevation of K.G Balakrishnan happened only three years (2000) after his initial recommendation and after all these controversies, the refusal of President to give assent for the judicial nominations had an impact on the future discourse on judicial appointments. There were widespread criticism and protests from the legal fraternity regarding the decrease of merit when this extraordinary note came out in public and even the CJI is reported to have stated firmly that appointments would be strictly on merit30. More than merit, diversity is also important in judicial appointments, As S.P Sathe points out:
“Merit in an unequal society is a dubious concept. A constitutional court has to be representative of all sections of society….The legitimacy of the Supreme Court depends upon the reflection of Indian pluralism in its composition. Women as well as members of the scheduled Castes and Scheduled tribes ought to be appointed to the Court in large number”31.
Diversity and the Need for Reservation in Judiciary
In the case of Supreme Court Advocates-on-Record association and another Vs Union Of India32 Justice Pandian while quoting Dr.B.R Ambedkar, had observed that entry into superior judicial office is not the exclusive prerogative of the privileged class. It is neither inheritable nor a matter of patronage.
National Commission to Review the working of the Constitution (NCRWC) headed by former Chief Justice of India Justice M. N. Venkatachaliah observes, “Over 50 years of the progress of education, however tardy, has certainly produced adequate number of persons of the SC, ST and OBC in every State who possess the required qualification having necessary integrity, character and acumen required for judges of Supreme Court and High Court for appointment as judges of the superior judiciary”33.
The Supreme Court Judgment delivered in 1991 states that: “Even today there are complaints that generations of men from the same family or caste, community or religion, are being sponsored and initiated and appointed as judges, thereby creating a new “theory of judicial relationship”. Our democratic polity is not for any self-perpetuating oligarchy but is for all the people of our country”.
All these remarks, along with the extraordinary note of former President K.R Narayanan regarding the judicial appointments and controversies aroused relating to it, cause for a shared perception that there is an inadequate representation of S.C.s, S.T.s, and the Other Backward Classes (OBCs) in the judiciary. The Parliamentary Committee on the Welfare of S.C.s and S.T.s, in 1999-2000 presented a report before Parliament on 15th March of 2000 which concluded that only a firm policy on reservation in the judiciary can remedy the problem of under-representation. The committee’s report said: “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.”34 The committee, consisting of 20 Lok Sabha members and 10 Rajya Sabha members, was headed by Kariya Munda, a BJP MP from Bihar. The report had a special reference to the appointment of SC-ST judges in the higher judiciary. “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,”35 the report observed. The committee recommended that Article 124 and 217 of the Constitution may be amended suitably to include especially the judiciary wing of the state within the ambit of reservations: simultaneously a Judiciary Act may be enacted to spell out the governing principles for the proper functioning of the judiciary, High Courts and the Supreme Court. The committee was surprised to find that of 481 High Courts only 15 SC and 5 ST judges were in position as on 1st May 1998. In 1983 it was 6 SC and 0 ST judges, which shows a slight increase within fifteen years. The Committee also noted that though judges take an oath to uphold the Constitution and the laws, the Supreme Court and a few High Courts claimed powers above the constitution, by practicing untouchability and flouting the Constitution in regard to Articles 16(4) and 16(4 A ).36
The committee 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 Courts37. 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. The report had also suggested an All India Judicial Service on the pattern of IAS and creation of National Judicial Commission having one member each from SC, ST and OBCs to deal with the appointment, transfer and placement of the Judges of the High Courts and Supreme Court.
The same recommendations were reiterated more vigorously in the Report on Reservation in Judiciary by National Commission for Scheduled Castes38 submitted in 2011. It also revealed that even on 2011, there were only 24 judges belonging to SC/STs against a total of 850 judges in all the 21 High Courts and among 21 High Courts; 14 of them do not have a single SC/ST judge.
The recommendation to create an All India Judicial Service by the Kariya Munda committee has now attained momentum recently. The law minister has said that An All India Judicial Service, with an entrance exam, can be conducted by the UPSC, which could provide reservation for SC and STs and that would help to create a pool of trained judicial officers from the deprived sections and improve representative character.39 Even though there is no mention on reservation for Other Backward Classes, going by the UPSC model for all-India civil services, there would be a provision for OBCs as well in keeping with the Supreme Court mandated implementation of the Mandal Commission recommendations. Meanwhile the Report on Reservation by National Commission for Scheduled Castes submitted in 2011 had recommended to treat the Supreme Court and High Courts as “STATE” within the meaning of Article 12 of the constitution, as held by Justice Mathew in the Kesavanand Bharti case40 and reiterated the need for creation of a National Judicial Commission having one member each from SC, ST and OBC and minority categories besides the Law minister, Chief Justice of India and one eminent personality with legal background nominated by President of India in consultation with Leaders of Opposition of both houses. The Chairman of National Commission of Scheduled Castes, Chairman of National Backward Classes and Chairman of National Commission for Minorities should be consulted in appointments of judges to the High Courts and the Supreme Court. The report had also asked to scrap the Collegium system which might not be a practical solution in the post NJAC verdict context. The central government too is not interested to appoint judges from SC/ST community; apart from its failed attempt to subvert the appointment of Justice K. M Joseph last year putting forward the need to have SC-ST judges in the Supreme Court41.
Whether it is the Collegium System or the National Judicial Appointment Commission, adequate representation of judges from SC and ST communities is the need of the hour. It is important not only because the Supreme Court of India needs to be more representative in nature, but also as evident in many cases discussed above, the inadequate representation/absence of judges from these communities in top level of the judiciary is also adversely influencing the judgment delivery mechanism in various ways. So for the better dispensation of justice from top level of Indian Judiciary, reservation for the underrepresented communities like SC and ST communities have to be implemented as suggested by Kariya Munda committee which was reiterated by National Commission for Scheduled Castes in 2011. The suggestion to have an All-India Level Judicial Examination should also be considered, but the representation of the under represented communities has to be ensured.
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Notes
1. “..Among the crimes that do get disposed of in court, about a quarter lead to convictions in crimes against dalits. As of 2016, this conviction rate–calculated by dividing the number of convictions in a year by number of cases completing trial in a year–stood at 26%, a 2 percentage point decline from the rate a decade ago (28%)”…”The conviction rate in cases of crime against adivasis, at 21% in 2016, is even worse, showing a 7-percentage-point decline from 2006 (28%) with the rest 79% acquitted”.., Alison Saldanha & Chaitanya Mallapu, Over Decade, Crime Rate Against Dalits Up 25%, Cases Pending Investigation Up 99%, www.indiaspend.com,4th April 2018, https://www.indiaspend.com/over-a-decade-crime-rate-against-dalits-rose-by-746-746/, accessed on 13th March 2019,
2. Of The Prisoners Currently On Death Row In India, 76% (279 Prisoners) Are From Lower Castes Or Religious Minorities, Jahnavi Sen, Three-Quarters Of Death Row Prisoners Are From Lower Castes Or Religious Minorities, 6th May 2016, See Https://Thewire.In/Law/Three-Quarters-Of-Death-Row-Prisoners-Are-From-Lower-Castes-Or-Religious-Minorities, Accessed On 13th March 2019, See Caste and Religious Profile, Page No 20, Death Penalty India Report: Summary, https://static1.squarespace.com/static/5a843a9a9f07f5ccd61685f3/t/5b4ced7b1ae6cfe4db494040/1531768280079/Death+Penalty+India+Report_Summary.pdf ,accesed on 12.48 pm 13th March 2019
3. Member Kerala Legislative Assembly, 1997 CrLJ 2036, Kerala High Court
4. 1991 Crl L J 2954.
5. 1981 CRl LJ NOC 104 (Kant).
6. From ‘Sati: A Study of Widow Burning in India’ by Sakuntala Narsimhan, 1998, as quoted in Judicial Pronouncements and Caste, Rakesh Shukla, Economic and Political Weekly, Vol. 41, No.42 (Oct. 21-27, 2006), pp. 4411-4414 accessed from http://www.jstor.org/stable/4418826 on 08-06-2017 11:09 am.
7. Maitreyi Krishnan, Ponni Arasu, Sexual Harassment Law, http://www.indiaseminar.com/2008/583/583_maitreyi_and_ponni.htm , accessed at 2: 53 PM on 13th March 2019.
8. Jenny Rowena, The “Sexual Harassment” Discourse: A Bahujan Woman’s Perspective, Nov 21,2017, http://www.raiot.in/the-sexual-harassment-discourse-a-bahujan-womans-perspective/, at 1:50 PM on 13th March 2019.9. Rakesh Shukla, Caste and Judiciary: an Analytical Look, 19th March 2017,See https://www.livelaw.in/caste-judiciary-analytical-look/ accessed on 13th March 2019, 2:29 PM.
10. Rajeev Dhavan, Alice Jacob, Selection and Appointment of Supreme Court Judges: A Case Study, NM Tripathi,1978.
11. Judicial Activism in India: Transgressing Borders and Enforcing Limits, New Delhi: Oxford University Press, 2003, pp.298-99
12. The recent supersession of three judges of the Delhi high court by a purely judicial collegium is shrouded in mystery, Raju/Ramachandran, Supersession And Secrecy Of Judicial Collegium
https://www.livelaw.in/columns/supersession-secrecy-collegium-142205 , www.livelaw.in, 17th January 2019.
13. Landmark Step To Transparency: Supreme Court Collegium Proceedings Are Now In Public Domain
https://www.livelaw.in/landmark-step-transparency-supreme-court-collegium-proceedings-now-public-domain/ , www.livelaw.com, 6th October 2017.
14. Abhinav Chandrachud, The Infromal Constitution: Unwritten criteria in selecting Judges for Supreme Court of India, Oxford University Press, 2014.
15. In February 2017, Gadbois, a professor emeritus in the department of political science at the University of Kentucky, died due to a terminal disease. His typewritten notes survive him.
16. George H Gadbois Jr, Judges of Supreme Court of India 1950-1989, Oxford University Press, 2011, A Collective Portrait, Chapter II, Caste, Page 344-347.
17. Ibid.
18. 17th August 1983.
19. Justice V R Krishna Iyer, Law Versus Justice, New Delhi: Deep & Deep Publication, 1983, p.210 quoted in Judocracy and Democracy in India-Boundaries and Breaches, by Sudhanshu Ranjan, Routledge India Paper Backs, 2016, Judicial Oligarchy-Family and Castes Play Decisive Roles: Weaker Sections Ignored, Page 205.
20. V.Venkatesan, Judiciary and Social Justice, Frontline, Volume 17 – Issue 21, Oct. 14 – 27, 2000.
21. Abhinav Chandrachud, Supreme Whispers: Conversations with Judges of the Supreme Court of India 1980-89, Penguin Random House India Private Limited, 2018.
22. Ibid.
23. Interview with B.P. Sinha (17 July 1983).Quoted in Criteria for judicial appointments, Abhinav Chandrachud, Supreme Whispers: Conversations with Judges of the Supreme Court of India 1980-89, Penguin Random House India Private Limited,2018.
24. Interview with Justice Y.V. Chandrachud (8 December 1988); Interview with Justice R.S. Pathak (17 April 1983). See further, Interview with Justice R.B. Misra (27 October 1988); Interview with Justice M.H. Kania (23 April 1988).Ibid, pp.
25. Granville Austin, Working a Democratic Constitution: A History of the Indian Experience (New Delhi: Oxford University Press, 2003 reprint).
26. Interview with Justice Y.V. Chandrachud (8 December 1988);
27. Interview with Chief Justice R.S. Pathak (22 December 1988). Pathak said that while he initiated Pandian’s name, his caste background was a factor which went into his appointment, quoted from footnotes, Abhinav Chandrachud, Supreme Whispers: Conversations with Judges of the Supreme Court of India 1980-89, Penguin Random House India Private Limited, 2018.
28. Gadbois Jr, Judges of Supreme Court of India 1950-1989, Oxford University Press, 2011, A Collective Portrait, Chapter II, Caste, Page 346-347.29. V.Venkatesan, Judiciary and Social Justice, Frontline, Volume 17 – Issue 21, Oct. 14 – 27, 2000, https://frontline.thehindu.com/static/html/fl1721/17210960.htm, accessed at 12.30 PM on 14th March 2019.
30. S.P Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits, New Delhi: Oxford University Press,2003,pp.298-99.
31. Ibid.
32.
33. Quoted in National Commission For Scheduled Castes: A Report on Reservation in Judiciary, http://ncsc.nic.in/files/Reservation%20in%20Judiciary. pdf, accessed at 7.51 PM on 14th March 2019.
34. V.Venkatesan, Judiciary and Social Justice, Frontline.
35. Ibid.
36. “..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, practise untouchability and are disobeying the Constitution with regard to Article 16(4) and 16(4)(A)…” Quoted from the report, V.Venkatesan, Judiciary and Social Justice, Frontline, Volume 17 – Issue 21, Oct. 14 – 27, 2000, https://frontline.thehindu.com/static/html/fl1721/17210960.htm, accessed at 12.30 PM on 14th March 2019, See also by Sudhanshu Ranjan, Judocracy and Democracy in India-Boundaries and Breaches, Routledge India Paper Backs, 2016, Judicial Oligarchy-Family and Castes Play Decisive Roles: Weaker Sections Ignored, Page 206-207.
37. Munda replied to a question by Frontline, “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 Judges?” , V.Venkatesan, Judiciary and Social Justice, Frontline, Volume 17 – Issue 21, Oct. 14 – 27, 2000, https://frontline.thehindu.com/static/html/fl1721/17210960.htm, accessed at 12.30 PM on 14th March 2019.
38. National Commission For Scheduled Castes: A Report on Reservation in Judiciary, http://ncsc.nic.in/files/Reservation%20in%20Judiciary.pdf, accessed at 7.51 PM on 14th March 2019.
39. Now, law minister pushes for SC/ST quota in judiciary, 26th December 2018, Times of India, http://timesofindia.indiatimes.com/articleshow/67249375.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst, accessed at 9.33 PM on 14th March 2019.
40. 1973 supp. SCRI, page 830.
41. “It may also be relevant to mention here that there is no representation of Scheduled Caste/Scheduled Tribe communities in the Supreme Court since long”. Letter written to Chief Justice of India Dipak Misra by Law Ministry, Poulomi Saha, 27th April 2018,www.indiatoday.in , https://www.indiatoday.in/india/story/centre-keen-on-sc-st-judge-in-supreme-court-1221631-2018-04-27, accessed at 10.30 PM on 14th March 2019.
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C Ahamed Fayiz has completed BA.LLB from Government Law College, Ernakulam, and has a PG Diploma in Radio and TV Journalism from Indian Institute of Mass Communication, New Delhi. Now he is doing LLM in Criminal and Commercial Laws at Department of Law, University of Calicut.
