Judges and castes: a counterview

Updated - September 06, 2016 04:05 pm IST

Published - March 19, 2015 02:58 am IST

In reference to the article, “ >Judges, castes and social justice ,” by Justice (retd.) K. Chandru, published on March 16, 2015, here are edited excerpts from a statement by C. Vijayakumar , President, Lawyers for Democracy and Social Causes, Chennai:

The author has sought to besmirch the lawyers’ agitations against l’affaire judges’ appointment to the Madras High Court.

Though there were dissensions and discontent over the merits of the candidates recommended for elevation as Madras High Court Judges in the past few years, it was only in December 2013 that the Madras High Court Advocates’ Association (MHAA) passed unanimous resolutions demanding the return of the 12 names forwarded for appointment as Judges.

There were unprecedented protests against a list of 10 names from the Bar. It was widely perceived that it was not actually drawn up by the then Madras High Court Collegium. The MHAA sought its return by the Supreme Court Collegium.

A couple of Writ Petitions were also filed. On one of them, a Division Bench of the High Court passed orders to maintain the status quo on the list. Ultimately, the Supreme Court acknowledged the shortfalls in the list and ordered its return, underlining the need to provide representation to the unrepresented and under-represented sections in the matter of selection of High Court judges. It observed: “Appointments cannot be exclusively made from any isolated group nor should it be predominated by representing a narrow group. Diversity therefore in judicial appointments to pick up the best legally trained minds coupled with a qualitative personality, are the guiding factors that deserve to be observed uninfluenced by mere considerations of individual opinions. It is for this reason that collective consultative process as enunciated in the aforesaid decisions has been held to be an inbuilt mechanism against any arbitrariness.”

The decision to return the list was unprecedented and threw light on the “selection process”, which lacks any intelligible criteria and transparency. It often led to ineligible persons being recommended for selection.

The present round of protests by the MHAA is primarily on the draw of names in phases and not in one instalment, apart from the fact that various unrepresented and under-represented sections of society, women and the minorities were excluded.

The article did not address the core issue of recommending persons from over-represented communities, but attempted to deflect the issues by citing statistics in relation to the subordinate judiciary. Even in the statistics, those meritorious candidates who made it to the selection list under the open category have been bottled in their respective communities by the author. This is unfair.

The crux of the issue, even in the form stated by the author, that communities such as Brahmin, Mudaliar, Gounder and Pillai are over-represented in the Madras High Court cannot be disputed. From the Brahmin community there are six judges including the present Chief Justice and the seniormost puisne judge. Even if those two are not counted, the number is not four but five, when one functioning in the Punjab and Haryana High Court is included as his parent High Court is Madras. As regards those from the three other communities that come under the category of Backward Classes, Madras already has a large chunk of them, with Mudaliars and Gounders numbering more than six each. Except for two, all of them were selected from the Bar. In this context of numbers, the MHAA’s demand against inclusion of more names from among these communities is justified.

The article says there are nine judges belonging to the Scheduled Castes. However, only three of them have been elevated from the Bar; the remaining six were elevated from the subordinate judiciary. They entered the service by rule of reservation and their elevation was as per the norms, and not on the basis of caste. The implementation of Rule of Reservation in the subordinate judiciary, like all the services under the State, is the fruit of the movement for social justice initiated by a “minuscule section” a century ago.

The lawyers are agitating on the larger issue of social justice. The author’s attempt to stamp the lawyers’ protest as that of a ‘minuscule section of the Bar’ constitutes a wilful misinformation campaign. It is a motivated attempt to divide the Bar, which will not succeed.

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