NJAC – Collegium issue: Affidavit filed by VCK founder President Thol.Thirumavalavan before Amicus Curieas of Hon’ble Supreme Court on 05.11.2015 at Delhi.
AFFIDAVIT FILED BY MR. THOL.THIRUMAAVALAVAN, FORMER MEMBER OF PARLIAMENT (L/S) AND MANAGING TRUSTEE OF THAAIMANN TRUST BEFORE HONOURABLE SUPREME COURT BENCH HEARD THE NJAC CASE:
I, Thol. Thirumaavalan, Male, Hindu aged about 53 years son of Tholkappian, residing at No.R-62, Second Avenue, Tamilnadu Housing Board Area, Velacherry, Chennai – 600 042 do herby solemnly affirm and sincerely state as follows:-
1. I most humbly submit that I am a Lawyer by completing Law Graduate with Master of Arts, Former Member of Parliament (L/S) and Managing Trustee of Thaaimann Trust. I am filing this petition for the public interest and social justice to attain equality in every level of our country.
2. I most humbly submit that I am well acquainted with the facts of the matter and I am filing this affidavit.
3. I most humbly submit that I am neither supporting NJAC nor Collegium system for the reasons that both are not considering the interest of the Scheduled Castes and Scheduled Tribes (SCs/STs) in the matter of appointment to the Supreme Court Judges and High Court Judges in our Country.
4. I most humbly submit that it is a well known fact that the sanctioned strength for Supreme Court Judges is 31 and sanctioned Chief Justices strength is 24 and total all High Court Judges sanctioned strength is 1017.
5. I most humbly submit that the SC/STs have not been given equitable opportunity as in the case of other communities in the matter of appointment of judges in Supreme Court and High Courts.
6. I most humbly submit that according to Article 141 of the Indian Constitution “Law Declared by Supreme Court to be binding on all courts. The law declared by the Supreme Court shall be binding on all courts within the territory of India”. But the judgement of this Apex Court in Second Judges Case. taken cognizance of wherein Justice Mr.Rathnavel Pandian states as under: “It is essential and vital for the establishment of real participatory democracy that all sections and classes of people, be they backward classes or scheduled Castes or Scheduled Tribes or minorities or women, should be afforded equal opportunity so that the judicial administration is also participated in by the outstanding and meritorious candidates belonging to all sections of the society and not by any selective or insular group.”
7. I most humbly submit that, the Poona Pact the solemn agreement signed between the stalwarts Sardar Vallabhai Patel, Chackravarthi Rajagopalachariyar, Devadas Gandhi etc. and Dr.B.R.Ambedkar and other leaders of Depressed Classes (now SCs & STs) on 24 September, 1932 gave an unequivocal promise inter alia that “There shall be no disabilities attached to any one on the ground of his being a member of the Depressed Classes in regard to any elections to local bodies or appointment to the public services”… that “every endeavour shall be made to secure fair representations of the depressed Classes in these respects, subject to such educational qualifications as may be laid down for appointment to the public services.”
8. It is a fact that the Poona Pact was accepted in lieu of the Communal Award declared by British Prime Minister Ramsay McDonald. The communal award was the victory of the hard work of Dr.B.R.Ambedkar. The communal award was considered as a tool to overcome the discriminations and prejudices arising out of the age old practice of untouchability.
9. I most humbly submit that the SCs & STs people who constitute one fourth of the population of the country were historically denied education, right to property, civil rights etc. with the sanctions of religious scriptures. Their representation in public services was therefore considered as a mean to establish an egalitarian society.
10. I most humbly submit that the provisions of the Poona Pact were incorporated in India Act, 1935 and subsequently in our Constitution. Lack of commitment on the part of the implementing authorities the rights guaranteed in the Constitution did not yield the desired result which is clear from the fact that there is inadequate representation of SCs & STs in several areas of public service. What to talk of their position in private sector services and business.
11. I most humbly submit that an illustrative example is judiciary which is one of the organs of the State. Absolutely no representation for SC and ST Judges in the Supreme Court, though they constitute nearly 25% of the population of India, the biggest democracy in the World. The Advocates practising in Madras High Court has time and again resorted to direct action pressing their just demand for adequate representation in higher judiciary of course which came under criticism by the honourable judges.
12. I most humbly submit that in the Constitutional Scheme of things, the Judiciary has been placed on a high pedestal by the framers of the Constitution of India to safeguard the Constitutional principles. While the two other organs of the State viz., the Legislature and the Executive are, by the mandate of the Constitution of India, obliged to implement at least a semblance of representation of the cross – sections of society such as SCs, STs, OBCs, the Judiciary remains a formidable fortress in the matter of fair representation/ adequate representation/due share for downtrodden communities.
13. I most humbly submit that the reluctance on the part of the judiciary for ensuring adequate representation of SCs & STs in higher judiciary has been in the eye-storm of criticism from the law makers, policy framers, aggrieved sections, civil society etc.
14. I most humbly submit that the absence of inclusiveness and shrinking social base in judiciary has been a matter of grave concern for social and political classes of the country as it failed to ensure social justice in terms of enabling the people hailing from the lower echelon of the society to get adequate if not equitable representation in the higher judiciary.
15. I most humbly submit that the lopsided appointment of judges to higher judiciary has come under sharp focus and criticism.
The Parliamentary Standing committee on the welfare of SCs & STs headed by Shri. Kariya Munda in its report submitted to Parliament in March 2000 said that “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 16(4) and 16(4) A”. The report recommended to make reservation for SCs & STs in High Court and Supreme Court judges appointments, if necessary by amending the Constitution”.
16. I most humbly submit that the Administrative Reforms Committee under the Chairmanship of Shri. Veerappa Moily recommended for the setting up of Judicial Services Commission to select the Judges for the Higher Judiciary in line with the system of selecting IAS, IPS, IFS etc. which would have taken care of the representation of SCs & STs and OBCs in judicial services.
17. I most humbly submit that the National Judicial Appointments Commission (NJAC) which was replaced the collegiums system of selecting Judges to the High courts and Supreme courts had no scope in its terms and references to improve the representation of SCs, STs, OBCs and women to the higher judiciary. However it has been scrapped by this Hon’ble Court by its recent judgement.
18. I most humbly submit that The Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice headed by E.M.Sudarsana Nachiappan M.P., in its report presented to the Parliament on 17th August,2007 recommended for adequate representation of SCs & STs in the Judiciary in general and the higher Judiciary in particular. The committee in its report in paragraphs 22, 17, 22, 18 and 22, 19 has noted as under:
“22.17. Judiciary is manned and operated by Learned Judges and other Judicial Officers. When Executive and Legislature are brought under the ambit of constitutional reservation, it is but natural that Judiciary, the third pillar of Democracy, should also be covered by the principle of reservation. Otherwise, it creates a dubious distinction among the three pillars of democracy. This is the major rationale regarding Reservation in Judiciary”.
“22.18. Equality of status and of opportunity guaranteed by the Constitution is precisely negated when the Judiciary closes the doors for the appointment of all classes of society. India is a pluralistic society. There are several distinct and cause of Social Justice can be served.” different interests of people with multiplicity of religion, race, caste and community.”
“22.19. They need to be given equal opportunity in all walks of life for participation in every sphere. Judiciary cannot be an exception. Reservation principle should be inclusive of Judiciary. This alone can bring constitutional balance between the Legislature, Executive and Judiciary. Then only, the real cause of Social Justice can be served.”
19. I most humbly submit that In the Advocates-on-Record case, Justice S.Ratnavel Pandian added that “it was necessary to make judicial appointments as broad- based a process as possible.” The law declared by the Hon’ble Supreme Court of India in the second Judges’ case in 1993, (SC Advocates-on-Record Assn., Vs, Union of India) affirms the policy of Participatory democracy in paragraphs 224 to 231 in the Judgement. The Hon’ble Court observed:
“229. …Our democratic polity is not only for any self-perpetuating oligarchy but it is for all people of our country.
230. If the vulnerable section of the people are completely neglected, we cannot claim to have achieved real participatory democracy…”.
20. I most humbly submit that despite such recommendations, observations and concerted efforts taken by civil society people for social justice in judiciary, the fact remains that in the 68 years of our Republic, only four Judges belonging to the Scheduled Castes have had the opportunity to be on the Bench of the Supreme Court of India that too it was 30 years after India became the Republic. When Mr. Justice A.Varadarajan was elevated to the Supreme Court in 1980, he obtained the distinction of being the first Scheduled Caste in Supreme Court. Thereafter, Mr.Justice B.C.Ray (1985 -1991) Mr.Justice K.Ramasamy (1989-1997) became judges of Supreme Court. Mr. Justice K.G.Balakrishnan who was elevated to the Supreme Court in 2000, demitted office in May 2010 as Chief Justice of India, (which office he held from January 2007) since then for the past 5 years, no Judge belonging to the Scheduled Castes has been appointed in the Supreme Court.
21. I most humbly submit that the situation in all High Courts is worse and the matter of grave concern. As per statistics, in all the 24 High Courts in the country, only 20 SC/ST judges (many of them from subordinate judiciary) are in position against the approved strength of 1017 Judges.
23. I most humbly submit that it is appalling to note that in several High Courts, there is no representation of SC/STs in the bench. According to the ministry’s statistics the vacancy position as of July, 2015, is 406 in all High Courts. Similarly in Supreme Court against the approved strength of 31 the working strength is at present 28 judges and there are 3 vacancies.
24. I most humbly submit that in 1998, the President K.R.Narayanan made the historical noting on the file seeking the President’s assent for the appointment of Supreme Court Judges. The president observed that ‘ 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 SCs & STs , who comprise 25 per cent of the population, and women are given due consideration’. He further added ‘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.’
25. I most humbly submit that former President K.R.Narayanan’s anguish is still not appeared to have understood in its right perspective which is apparent from the fact that nil representation of SC & STs in Supreme Court for several years and inadequate or nil representation in various High Courts.
26. I most humbly submit that the collegiums system in the past 23 years of its existence has not redressed these long pending grievances.
27. I most humbly submit that in deference to the unenviable role assigned by the framers of the Constitution to the judiciary to act as the conscience keeper of the Constitution, the Hon’ble Supreme Court shall device suitable system and set out proper guidelines to collegiums of Supreme Court and High Courts to ensure adequate representation to the Scheduled Castes and Scheduled Castes who satisfies the norms of suitability for appointment to the Supreme Court and High Courts on the basis of the settled principle of law waiving the seniority rule for such elevation in case of Supreme Court.
28. I most humbly submit that it is needless to say that there are District Judges, IAS, IPS and other officers in the country from SC and ST community rendering distinguished services on par with others. Considering their population, there should have been at least 6 judges in the Supreme Court and 5 judges as Chief Justice in various High Courts and more than 200 judges in various High Courts from SC & ST community.
29. I most humbly submit that, in the present scheme only the influential Advocates are mostly being selected at relatively younger age who in turn get the scope and opportunity for further elevation to Chief Justice of High Courts and to Apex Court. The SCs&STs judges due to the historical reasons are being appointed at a comparatively older age resultantly they are in the bottom most position in the seniority list of High Court Judges.
30. I most humbly submit that the SCs & STs have been under represented in the higher judiciary. Despite availability of suitable Judges in SC & ST communities for elevation to the Supreme Court of India or to become Chief Justice of High Courts, they continue to remain neglected in the selection process due to sheer prejudices and face social discrimination which is a matter of grave concern in the context of the Constitution of India as envisaged in its preamble to build India a Sovereign, Socialist, Secular, Democratic Republic.
31. I most humbly submit that Shri Prabhakaran, learned senior counsel, has submitted in the Registrar General Vs R.Gandhi case (SLP (C) Nos.892-893/204) before this Hon’ble Court that “the advocates – recommendees were not suitable for appointment as a Judge of the Madras High Court; and the collegium failed to consider the various other eligible and suitable advocates practicing before the Madras High Court having different social backgrounds. In a democratic set-up, it is the sharing of the power and all citizens of this country irrespective of any caste or creed, who are eligible and suitable for the post, have a right to be considered for appointment. The collegium has a “duty” to consider the eligible and suitable Advocates belonging to all sections of the society to ensure wider representation. It may have larger social dimensions if certain segments of society are not adequately represented on the Bench. The ethos of pluralistic democracy or diverse unequal India should be humane, tolerant and reminiscent, yet balancing the contemporary realities which in the case are agitated on the lines of caste and their inclusion in mainstream of public life. The spirit of equality pervades the provisions of the Constitution, as the main aim of the founders of the Constitution was to create an egalitarian society wherein social, economic and political justice prevail and equality of status and opportunity are made available to all.”
32. I most humbly submit that the above submission was appreciated by this Hon’ble Court in the Registrar General Vs R.Gandhi case.
33. I most humbly submit that there is hardly any participation of SCs & STs in the policy making bodies, industries, trades and businesses etc. The reservation is mostly confined to government jobs which are mostly clerical and supervisory in nature. The SCs & STs even today face prejudice and social discrimination. Adequate representation of people from SCs & STs and OBCs in judiciary particularly in higher judiciary is believed to be a mean to achieve social justice.
34. I most humbly submit that the Honble Union Minister for Law & Justice in his DO letter No.K-14014/1/2013-US.I dated 07-01-2014 addressed to me (then I was MP-LS) stated that “the Government has, from time to time, addressed letters to the Chief Justices of the High Courts requesting them to locate persons from the Bar belonging to SCs & STs and OBCs, Minorities and amongst women who are suitable for appointment as High Court Judges.
35. I most humbly submit that while replying to a starred question No.193 in the Rajys Sabha on 05-12-2014 it has been stated that, ” the Government has, the Chief Justices of the High Courts that while sending proposals for appointment of Judges, due consideration be given to suitable candidates belonging to SCs & STs and OBCs, Minorities and from amongst women”.
36. I most humbly submit that Sardar Vallabhai Patel while speaking to the Constituent Assembly on May 26, 1949 referred to Scheduled Castes and observed that “…these poor people are oppressed continuously and have not been saved yet. We are the trustees. We have given a pledge in Poona under the Poona Pact. Have fulfilled the pledge? We must confess we are guilty.” The question raised by Patel in respect the pledge given in Poona Pact still remains as a mute question.
Hence, it is most humbly prayed that this Hon’ble Court may be pleased to ensure the adequate representation or due share to the Scheduled Castes and Scheduled Tribes in the appointment of High court judges and Supreme Court judges in India when considering some improvements in the present collegiums system of Judges selection and pass any other orders as this Hon’ble Court may deem fit and proper in the circumstances of the case and thus render justice.
