Constitutional Strategies for Bahujan Representation in the Higher Judiciary

 

Dr. Ayaz Ahmad

“As experience proves, rights are protected not by law but by the social and moral conscience of society. If social conscience is such that it is prepared to recognize the rights which law chooses to enact, rights will be safe and secure. But if the fundamental rights are opposed by the community, no Law, no Parliament, no Judiciary can guarantee them in the real sense of the word.”                                                                                                                                                            Dr. B R Ambedkar[1]

Introduction

Since the commencement of Indian constitution, the higher judiciary (Supreme Court and High Courts) has operated as the death chamber of social justice policies[2]. By thus arresting social democracy, the higher judiciary has endangered our political democracy too. Such unfortunate judicial performance is rightly attributed to near complete monopoly of the Supreme Court and the High Courts by Brahmin-upper castes/class judges and advocates. Naturally, the efforts to redeem the higher judiciary from upper castes by the Bahujan class rightly concentrate on making it more representative. However, various strategies like the demand to implement Article 312 and abolition of Collegium System popular among social organizations and activists to achieve a representative higher judiciary remain oblivious to constitutional realities. These strategies are mostly presented as legitimate demands to the ruling class with a series of self-fulfilling assumptions. Due to such uninformed strategies, most of those efforts are unlikely to yield desired results. In fact, some of them may prove to be counter productive. This article aims to examine existing popular strategies to secure a representative higher judiciary in order to understand their feasibility in the light of extant constitutional arrangements. It will also explore the alternative legal strategies within the constitutional horizon of possibility to achieve a representative higher judiciary more conducive to social democracy.

Demand for the Creation of All India Judicial Services under Article 312

Article 312 envisages the creation of all India services including judicial services common to the Union and the States. Bahujan demand for the creation of All India Judicial Services (AIJS) under this article is premised on following two key assumptions:

1. That the appointment process to All India Judicial Services will necessarily incorporate the provisions for the reservation of SC, ST and OBC communities;

2. That candidates so appointed would join High Courts and Supreme Court which would thus lead to increased representation of Bahujan class in the higher judiciary.

Let us examine the second assumption first to find out if there can be any connection between the candidates selected under All India Judicial Services and the selected candidates joining High Courts or Supreme Court. Here is the full text of Article 312 for quick reference:

312. All-India services.—(1) Notwithstanding anything in Chapter VI of Part VI or Part XI, if the Council of States has declared by resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest so to do, Parliament may by law provide for the creation of one or more all India services including an all-India judicial service common to the Union and the States, and, subject to the other provisions of this Chapter, regulate the recruitment, and the conditions of service of persons appointed, to any such service.

(2) The services known at the commencement of this Constitution as the Indian Administrative Service and the Indian Police Service shall be deemed to be services created by Parliament under this article.

(3) The all-India judicial service referred to in clause (1) shall not include any post inferior to that of a district judge as defined in article 236.

(4) The law providing for the creation of the all-India judicial service aforesaid may contain such provisions for the amendment of Chapter VI of Part VI as may be necessary for giving effect to the provisions of that law and no such law shall be deemed to be an amendment of this Constitution for the purposes of article 368.        

Now clause (3) of this article expressly lays down that the all-India judicial service referred to in clause (1) shall not include any post inferior to that of a “district judge” as defined in article 236. Clause (a) of Article 236 defines the expression “district judge” to include judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions Judge. In Clause (b) of Article 236 the expression “judicial service” has been defined to mean a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge. It is clear that for the purpose of Article 312 the expressions “judicial service” and “district judge” make absolutely no reference to the post of a judge at High Court or Supreme Court. In other words, Article 312 does not contemplate All India Judicial Services as a mode of appointment to the post of a judge at High Courts or Supreme Court whenever it becomes a reality. For this reason, ‘law’ giving effect to All India Judicial Services under clause (4) of Article 312 refers only to amendment of Chapter VI of Part VI titled as ‘Subordinate Courts’ that is the District Court and the Courts under it. Further, Article 312 (4) expressly lays down that such a law is not to be deemed to be an amendment of this Constitution for the purposes of article 368. If Article 312 even remotely envisages appointment of High Court and Supreme Court judges through All India Judicial Services then such a law must also provide for changes in Articles 124 and 217 which directly deal with the appointment of judges to Supreme Court and High Courts respectively. The ‘law’ to make relevant changes in Articles 124 and 217 must be a constitutional amendment as Article 124 falls under Chapter IV of Part V and Article 217 falls under Chapter V of Part VI of the constitution and Article 368 mandates that changes to any article falling under these chapters can only be through constitutional amendment with ratification by the Legislatures of not less than one-half of the States. Therefore, for a law enacted under Article 312 to be able to make changes in Articles 124 and 217, constitutional amendment in Article 368 must be made first. Article 312 does not provide for these changes, on the contrary, it expressly obviates these changes with reference to Article 368 reflecting the intention that AIJS is not intended to cover the higher judiciary. It also explains why the non-obstante clause added to Article 312 (1) seeks to override only provisions of Chapter VI of Part VI which deal with subordinate courts and does not touch Chapter IV of Part V or Chapter V of Part VI. Absence of the non-obstante clause could otherwise lead to overlap of legislative powers between the Union and the States as the law making powers for the constitution and organisation of subordinate judiciary at present falls under 11A of the Concurrent List[3] and prior to 42^nd Constitutional amendment it was within the exclusive jurisdiction of States under entry 3 of the State List. The resolution from Council of States as a condition precedent to Parliamentary law providing for All India Judicial Services was necessary in the original Article 312 as it involved legislation by the Center on a subject matter which was the exclusive legislative field of the States.  

 In fact, entry 11A of the Concurrent List (including its predecessor entry 3 of the State List) has clearly placed the power of constitution and organisation of the Supreme Court and the High Courts outside the legislative powers of the States. Such a power lies within the exclusive legislative domain of the Center by virtue of entries 77, 78 and 79 of the Union List read with Articles 124 and 217. From the Constituent Assembly to Law Commission of India[4] to various Committees[5], State governments, Union government including Supreme Court[6] which considered this subject matter all proceeded on the basis of this basic understanding of the constitutional scheme. That is why none of them, while addressing the question of All India Judicial Services, ever considered the possibility of appointment of High Court and Supreme Court judges through AIJS. Rather, the bone of contention on all such occasions has been whether the creation of All India Judicial Services would erode the control of High Courts over subordinate judiciary as provided by Article Article 235. Thus, it is crystal clear that any changes to constitution and organisation of the Supreme Court and the High Courts can be done only by the Parliament in exercise of its legislative powers under entries 77, 78, 79 and the constituent powers to amend the constitution and not under Article 312. Even this power has to be exercised within the limitations imposed by the doctrine of basic structure, that is, without compromising the independence of judiciary as understood by the Supreme Court.

Another concomitant to this demand is that the appointment of judges in higher judiciary should be through written examination. The rhetoric goes that when judges all over the world are appointed through written exams why only in India it happens through nomination. Nothing could be farther from the truth. There is no system of appointment to constitutional courts through written exam in any democratic country. When this question came up before the Constituent Assembly, it considered the method of appointment prevalent in Britain and America. Babasaheb Dr. Ambedkar noted that in Britain the Council of Ministers has exclusive authority to appoint the judges of constitutional courts while in US the Senate has the final say. For India, Constituent Assembly developed a third way under Articles 124 and 217 whereby appointment of judges to higher judiciary was to be made by the Council of Ministers in consultation with such of the Judges of the Supreme Court and of the High Courts as the President may deem necessary. It is another story that the Supreme Court in Second judges case[7] misinterpreted the word consultation to mean concurrence and arrogated to itself the power of appointment by propping up the Collegium System[8]. But the Constituent Assembly did not even once consider the possibility that the judges of constitutional courts could be appointed by a written exam under any condition. Such a proposal would be akin to holding that members of legislature, Ministers including Chief Minister and Prime Minister be appointed through a written exam! Therefore, the assumption that candidates selected under All India Judicial Services will join High Courts or Supreme Court is not based on the existing constitutional scheme of things rather it is contrary to deeply entrenched provisions of the constitution relating to appointments at higher judiciary. Once the fallacy of this assumption is properly understood, the hollowness of first assumption that the appointment process of All India Judicial Services will necessarily incorporate the provisions for the reservation of SC, ST and OBC communities can be easily brought out. 

We have seen that Article 312 does not, directly or implied, allude to the incorporation of reservation policy in the selection process of All India Judicial Services. It means that for the reservation of SC, ST and OBC communities in AIJS one has to squarely depend on the implementation of Article 16(4) and recruitment laws made with reference to it. Under the existing recruitment process of the judges of subordinate courts nearly all States provide reservation up to 50% and some States like Tamil Nadu more than 50%. If the recruitment process of the judges of the subordinate courts is taken outside the purview of States and placed within the domain of the Union through AIJS then the Center will get an opportunity to rewrite their recruitment rules including reservation rules applicable to them[9]. The present regime is waiting for such an opportunity to reduce the quantum of reservation in collaboration with the Brahmin-upper caste Supreme Court. With ‘reservation is not a fundamental right’ parroting by the Supreme Court, any opportunity for the central government to rewrite the recruitment rules will in all probability result in the reduction of reservation which would be promptly approved by the apex court. The fate of reservation in medical admissions with the Supreme Court mandated and centrally administered NEET is their for all to see. Some newspapers have already reported that the draft proposal to create All India Judicial Services is planning to limit reservation to just 25%[10]! Thus, both assumptions that AIJS will result in increased Bahujan representation in High Courts are fortuitous at best and suicidal at worst.     

Demand for the Abolition of Collegium System

This demand at least relates to relevant provisions of the constitution Articles 124 and 217 which deal with the appointment of judges to Supreme Court and High Courts respectively. But we have to see whether mere abolition of the Collegium System would automatically lead to increased Bahujan representation in the higher judiciary. One is not sure how the barren demand to scrap the Collegium System will result in Bahujan representation in High Courts and Supreme Court. Two assumptions again seem to be at play here. First assumption is that the Pre-Collegium era provided greater representation to Bahujan class in higher judiciary. There is no statistical basis to such an assumption. Kariya Munda Committee on the Welfare of Scheduled Castes and Scheduled Tribes[11] in its analysis of data relating appointment of Supreme Court and High Court judges does not record any appreciable difference in the Bahujan representation to higher judiciary before or after Collegium System, it remains abysmally low in both the cases.

The second assumption to this demand is far more circuitous and ambitious than it appears at first glance. Abolition of the Collegium System and reversion to Pre Collegium System would mean that the appointment of judges of High Courts and Supreme Court will essentially be made by the President which by virtue of Article 74 effectively means by the Prime Minister and his party. In such a scenario, to secure the appointment of Bahujan candidates there must be a Bahujan political party which enjoys full majority in the Lok Sabha with a Bahujan Prime Minister. This Bahujan Prime Minister will have to first wrestle back the power of appointing judges of higher judiciary from the Supreme court which would entail either of the two victories over the Supreme Court, 1) winning the argument before an 11 judges bench that the power to appoint judges of Supreme Court and High Courts under Article 124 and 217 respectively rests with the President and the judgments in Second[12], Third[13] and Fourth[14] judges cases be overruled; or 2) winning the argument before a 15 judges bench that the Parliament has unlimited powers under Article 368 to amend the constitution and the basic structure doctrine case be overruled[15]. It is evident that for the Bahujan Prime Minister to win these battles with the Supreme Court there has to be unprecedented Bahujan influence on the Supreme Court already in addition to the two third majority of her party in both houses of the Parliament and full majority in at least half of the States! There is a reason why the BJP government in full control of the Parliament did not make a second attempt to abolish the Collegium System when its first attempt to do so was shot down by the Supreme Court in the Fourth judges case in 2015[16]. It found much easier to deploy investigative agencies on corruption and harassment cases involving judges to control judicial appointments and get favourable verdicts from them. Therefore, the demand for the abolition of Collegium System is bereft of constitutional realities and uselessly consumes the energies of Bahujan class which needs to remain focused on the question of Bahujan representation in the higher judiciary.

Building Strategies: Harnessing the Collegium

The question of Bahujan representation in the Supreme Court and High Courts is too important to be approached in a roundabout and presumptive manner. It has to be taken head on, adequately planned and suitably strategized in the face of existing constitutional arrangements. With the Collegium System of appointment decisively in control of the Supreme Court after the Fourth judges case, the beginning has be made with the Collegium itself. The Collegium must be influenced to adopt following circular/resolution concerning the representation of SC, ST and OBCs in the appointment of judges;

“In compliance with the equality clause (Preamble, Articles 14, 15, 16 and 335) of the constitution, in all future appointment of judges to High Courts and Supreme Court, proportionate representation to the candidates from SC, ST and OBC categories will be ensured by the Collegium.”

The above circular/resolution will be immune from being circumvented by the Collegium as it would come straight from the horse’s mouth. Such demonstration of respect for the equality clause of the constitution by the apex court would have the added advantage of energizing all wings of the state to realize social equality at the earliest. But the real challenge in this case is how to exert such an influence on the Collegium? The first step would be to take control of the Supreme Court/High Court Bars both in terms of numbers and leadership. For this to become a reality in a generation or two, it becomes imperative to bring legal education at the center of social organizations, their movements and activism. Districts surrounding every High Court must have Bahujan controlled Law Schools/Universities to teach, train and prepare Bahujan students for the leadership of that High Court. Similar efforts focused on assuming the leadership of Supreme Court Bar can catapult the Bahujan class to exert meaningful pressure on the Collegium to respect Bahujan claims of proportional representation in the higher judiciary. This approach even in the absence of any legal instrument is poised to reconfigure the caste/class composition of both the bar and the bench of the Supreme Court and High Courts. It is necessary to escape the vicious cycle of Bahujan exclusion from legal education ushered by the contrivance of National Law Universities both from the student body and the faculty which at best is a privatized form of education[17]. The new education policy with its renewed push for the privatization of higher education has only formalized what has already been achieved by the National Law Universities, that is, the Bahujan exclusion from higher education particularly legal education. Exclusion from legal education invariably translates into exclusion from higher judiciary.

Legislative or Executive Device under Articles 15 and 16

A second approach could be to get specific legislative or executive instrument passed by the Union under Articles 15(4) or 16(4) for the representation of Bahujan class in the higher judiciary. A law to reserve certain posts of judges at the Supreme Court and High Courts in proportion to Bahujan population is feasible within existing constitutional framework. Posts of judgeship in higher judiciary undoubtedly being public service can be reserved like any other post of public nature. To be able to make such a law, the Bahujan class must sufficiently be in control of the Parliament and Union government. But the law making provision for Bahujan representation in the higher judiciary must face hostile judicial review by the Brahmin upper caste dominated Supreme Court. In order to drown such a law, the Supreme Court has armed itself with two set of arguments. One, reservation of posts and services which are termed as ‘technical posts’, post involving ‘specialties and super-specialties’, ‘posts at the higher echelons’ is inadvisable[18]. The court will certainly try to bring the post of a judge in the Supreme Court and High Courts in any of these categories and invalidate the law for being outside the purview of Articles, 15, 16 and 335. Second, the court has persistently argued that any interference by the Parliament or the Executive in the appointment of judges to the Supreme Court and High Courts undermines the independence of judiciary which is the basic structure of the constitution. ‘Independence of judiciary’ trope has already been used by the Supreme Court to invalidate the law passed by State legislature under Article 16(4) which made provision for Bahujan representation in the subordinate judiciary[19]. The law providing for Bahujan representation in the higher judiciary with the help of this reasoning can be invalidated with reference to Articles 124 and 217. Expect the ‘independence of judiciary is the basic structure of the constitution’ argument to be deployed with greater ferocity against such a law. Therefore, for this approach to succeed the Bahujan control of the Parliament and Union government should be long and strong to fight a protracted battle with the upper caste controlled Supreme Court for Bahujan representation in higher judiciary. For this reason it is necessary to pursue this strategy simultaneously with the ambition to control the Bar of High Courts and the Supreme Court through legal education.

Constitutional Amendment in Articles 124 and 217

Under these circumstances one has to explore constitutional instruments for assistance if social democracy is to be made a reality by composing a representative higher judiciary. The appointment of Supreme Court and High Court judges at present is made under Articles 124 and 217 by the Collegium comprising of five senior most Judges of the Supreme Court including the Chief Justice of India. Elected governments both central and state virtually have no say in the matter[20]. Therefore, Articles 124 and 217 must be amended to incorporate a clause for the representation of Scheduled Castes, Scheduled Tribes and Other Backward Classes in the appointment of Supreme Court and High Court judges. The clause to be inserted in Articles 124 and 217 may look like this;

“In the appointment of judges of High Courts/Supreme Court, proportionate representation to the candidates from SC, ST and OBC categories shall be ensured”.

The Committee on the Welfare of Scheduled Castes and Scheduled Tribes in its second report to thirteenth Lok Sabha[21] rightly recommended that Articles 124 and 217 may be amended suitably to include judiciary wing of the State within the ambit of reservation. This committee was particularly concerned with the representation of Scheduled Castes and Scheduled Tribes in judiciary with special reference to the appointment of judges in Supreme Court and High Courts. For such an amendment to be made it is necessary, as noted above, to secure at least two third majority of the Bahujan class in both houses of the Parliament and full majority in at least half of the States. But even such a constitutional amendment will have to survive the Supreme Court which is armed with the doctrine of basic structure precisely for situations like this. The Supreme Court may invalidate the constitutional amendment by holding that it undermines the independence of judiciary and hence violates the doctrine of basic structure. Therefore, this approach too should be pursued in combination with the first approach of controlling the Bar of higher judiciary by taking up legal education for the Bahujan class at a war footing which can transform the character of the Bench also.  

Conclusion

It is absolutely essential for the Bahujan class to get proportionate representation in the higher judiciary so that the constitution can be interpreted with the spirit of social democracy. Different constitutional strategies can be explored to achieve this goal but implementation of Article 312 or abolition of Collegium System are certainly not one of them. In fact, creation of All India Judicial Services under Article 312 has been on the agenda of Brahmin upper caste dominated Law Commissions, Committees, Supreme Court, media including political parties and they are very close to achieving this goal[22]. The question here is when this agenda was being pursued by the Brahmanical class in a broad day light how did it become the demand of the Bahujan class? It is heart breaking to see the Brahmin class planing to further reduce the Bahujan representation in the subordinate judiciary by creating All India Judicial Services and the Bahujan class demanding AIJS perceiving it to be a technique of increasing Bahujan representation in the higher judiciary! It is equally baffling as to why, instead of focusing on the right strategy for enhancing the Bahujan representation in the Supreme Court and High Courts, precious energy has been/is being wasted in the demand for the abolition of Collegium System.

One explanation could be that the systematic exclusion of the Bahujan class from legal education was designed to produce this result. Legal language disseminated through legal education is central to the game of democracy. The game of democracy is played with the equipments of legal language. Exclusion from legal education directly leads to exclusion from participating in the democratic game in a meaningful way. Closing access to legal education may amount to closing access to democracy itself. Therefore, opening access to legal education despite all the impediments created against such an access by the Brahmanical class, remains the ultimate strategy to increase Bahujan representation in the higher judiciary.      

 

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