Raw deal meted out to SCs/ STs/OBCs...

in  higher Judiciary, even after 75 years 

Our country’s citizens will boast that unity in diversity is India’s privilege. But there is no diversity in judicial appointments for higher judiciary. This is so sad and the fact remains the same even after 75 years of Independence.   

The Judicial Appointments over the past 75 years gives a grave concern for appointments of SC, ST and BCs in High Courts and Supreme Court. While the reports of Kariya Munda, E.L. Venkatachalaiah and E.Sudarshan Nachiappan clearly states that SC and STs are ignored in the appointments. Amongst all the 29 states this is the scenario. The statistics available with the Department of Justice clearly shows the same. Till 1980s there was no Judge from Scheduled Castes of Other Backward Classes in Apex Court. This was made due to the remarks on the Note File, made by the then President K. R. Narayanan. The Total number of Judges that served in Supreme Court are 247 and out of them the brahminical dominance shows that 42.85% were Brahmins. There is long list, a very long list. How can we expect that there is social justice in appointments of Judges of High Courts and Supreme Court. Out of these14 CJIs were Brahmins and will increase by 16 sooner. Ironically all this is merit, though many aspects were ignored. 


Though the State is under obligation as per Article 38 of Constitution of India to promote social diversity, but the appointments give us bitter results. The appointments especially neglecting the SC, ST and BCs give a classic example as to how the social harmony amongst the appointments are minimal and the place of the SC, ST and BCs it seems are fixed at the bottom. That apart the practising Advocates from these sections are from poor social and economical background, thus it takes sometime for them to get established. Though our country has metropolitan cities and many villages turning into cities, these cities have turned out to be strongholds of the mighty and powerful. The poor is getting poorer and the rich is getting richer. 

The first difficulty for SC, ST and BC Advocates are that they are basically from financially weak background and they don’t have political support. They don’t have proper office in their initial stages and they were not backed up by interested persons. They have to portray themselves and they have to come out on their own. This is completely different for OCs.  

As seen from the report of Kariya Munda, Chairman of SC, ST Parliamentary Committee in the year 2001. The Report clearly states that SC, STs doesn’t have enough representation in the higher judiciary. Though Judiciary undoubtedly falls within the definition of Article 12 as held by High Courts and the Apex Court, till date the scheme of reservation was not implemented for various reasons. 

In fact it is the failure of the respective governments in not promoting the SC, ST and BC Advocates to the Higher Judiciary. Since Article 38 provides that the State to secure a social order for the promotion of welfare of the people and 38(1) is read as follows “The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. (2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.

Thus both the Centre and State Governments are under obligation to promote social harmony and shall secure social order. But this provision is ignored while sending the names of the aspirants by the state Government. In the process of consultation, though the proposal, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues. The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister. The system of appointment and transfer of judges was evolved through judgments of Apex Court and not by any Act of Parliament or by Constitution.

If we take note of the appointments to higher judiciary in common Andhra Pradesh and the present Andhra Pradesh, it will shock the conscious of the common man, that appointment of Scheduled Castes, Scheduled Tribes and Backward Class Advocates as Judges of High Court didn’t happen till 1990s. After a lot of efforts from the Advocates at Bar, it started happening from the year 1990s. By 1990s two of the SCs and BCs were elevated as a customary practice, one BC minority muslim was also considered. However, this number remained the same, while the other communities are being promoted in multiples. 

By 1956 the High Court of Andhra Pradesh started functioning bifurcated from Madras High Court. From 1956 till 2018, the total appointments of High Court Judges was 187 and out of this the total number of CJs served in the common High Court is 36 by 2018. Among these appointments, the appointment of SCs and BCs is not to the required proportion and mark. There is any amount of ignorance of these sections particularly, despite the Law Ministers and the reports of the Parliamentary committees to promote and diversify the appointments.  In the total appointments made from 1956 to till date, the number of appointments made from Scheduled Castes doesn’t reach double digit and it remained with single digit. For Backward Classes it reached double digit but not considerable percentage and it would remain below 20% and for Scheduled Tribes it remains completely zero. The percentage of judges appointed from scheduled Castes is thus about 3% approximately, from 1956. So one can understand the picture clearly. 

If we take the total strength of the BC Advocates it would be around 1/3rd of the total Advocates in the State, Scheduled Castes would be around 1/5th. The Scheduled Tribes are minimal. There is not even one Scheduled Tribe who was elevated as High Court Judge till date in Andhra Pradesh High Court or in the Common High Court till its bifurcation. That was the scenario. 

Since there were many issues with respect to the appointments of the collegiums, it drew sharp criticism and then there was a proposal to formulate a separate scheme for the purpose of appointment of Judges to Higher Judiciary. After almost 2 to 4 years span of time, the Parliament came up with Memorandum of Procedure which specifies the criteria and the procedure to be followed. This memorandum of procedure prescribes that a person who shall be appointed as a Judge shall have minimum age of 45 and the maximum age is 55. The same was reiterated by the Hon’ble Apex Court in Lok Prahari Vs Union of Inida that a candidate who is appointed as a Judge shall be within the age limit of 45-55 years. The maximum age is 55 years and the minimum age is 45 years. Though instances are that collegium itself exempted such age limit for some of the candidates. When MOP and the Judgment are clear, whether granting exemption to the age criteria is a question of law. In case of a government post, the answer is no, but the collegium proceeded and appointed such candidates. 

The only question is what is the criteria for exemption, whether it is nepotism or close nexus with the High Court and Supreme Court Judges. Even in such cases, the SC, ST and BCs was never recognized by the Collegium and thus their candidature was not considered on the ground of suitability. From 1947 to till date the number of SC Judges in AP High Court is only 2 and this number never increased. The same is the case of BC Judges in AP High Court. In case of ST Judges, there is none from 1947 to till date. In a span of 2 years, about 8 judges were appointed and 7 were proposed by the Collegium who will soon take charge. Though there are three reports of the SC and ST Committees especially to apply reservation policy to appointments of the judges to Higher Judiciary. Despite this, there is a hostile discrimination from the Government while proposing and not getting the names of the aspirants cleared. Unless there is an adverse report from the Intelligence, there cannot be any other grievance except keeping aside their candidature on some frivolous grounds. 

There are two main grounds for getting appointed as judges of High Court and Supreme Court. One is eligibility i.e. the age, standing at bar and citizenship. The Second one is suitability. With respect to suitability, there are various kinds of suitability. Amongst them there are four main factors to be considered. 

1. Nepotism or Relatives of a Judge: An Advocate who has even less track record i.e. filing of cases, number of appearances, reported cases and even age criteria is relaxed for them and they will be firstly considered to be suitable Judge. 

2. Junior of a Judge / Retd. Judge: An Advocate who is a junior of a sitting Judge or retired judge, will be secondly considered as suitable to be a judge. Even such Advocates will generally be from Upper Castes. 

3. Caste: Caste plays dominant role in the system and even in Advocacy. If you are from the Upper Caste and if you have political support, then you will be thirdly considered suitable to be a Judge.  

4. Juniors of Advocate Generals and Addl. Advocate Generals: Since the Advocate General and Addl. Advocate Generals in general will have access to the Judges since they would be regularly appearing in the first court and other Division Benches, they have such rapport and they suggest their own for obvious reasons. 

The best examples for these are that, about a week ago, Apex Court Collegium resolved to propose 7 new judges for A.P. High Court, amongst them two of them come under the suitability factors of 1 and 2.  Recently, one of the Judge, transferred from Andhra Pradesh High Court to Telangana High Court and her daughter was a junior to the present proposed Advocate for Elevation namely S. Subba Reddy and it has come to light that Gannamaneni Rama Krishna Prasad, was junior to Justice L. Nageswar Rao and thus his name was considered even at the age of 57 years 9 months giving exemption to MoP. Likewise, K. Srinivas Reddy was proposed for the reason, that he was from the office of Late C. Padmanabha Reddy and his son is now one of the Puisne Judge in A.P. High Court. 

Finally comes the turn of independent candidates. In Common High Court of Andhra Pradesh and bifurcated High Court, the Advocate Generals are from Upper Castes from 1956 post bifurcation of Andhra Pradesh from Tamil Nadu. There was no Advocate General from Scheduled Tribe, Scheduled Caste and Backward Class. Remember, this is all merit, nothing related to caste. For more than 40 years only Kammas and Reddys have ruled Andhra Pradesh. 

The present Government suggested certain names of even SC Advocates but their names were not considered suitable for various reasons by the Collegium. If the Watchdog is not able to stand to its duty, who will watch the watchdog is the question. Whether there is hostile discrimination in case SC, ST and BCs for appointments as Judges to High Court and Supreme Court. Basing on the facts and circumstances from 1947 the answer would be Yes.  

Thus the Law Ministry, the Central Government, Ministry of Social Justice and Empowerment and all the State Governments shall undoubtedly consider the candidature of SC, ST and BC Advocates for appointment as Judges of High Court and Supreme Court. Even after 75 years, the number of SC Judges is 1 and BC judges is 2, this number remained constant from 1980s and the number didn’t increase despite much water flown. While coming to the Judges of other castes, their numbers added and this makes clear difference to the social justice enumerated in the preamble of the Constitution. 

To overcome the appointments made by the Collegium system, MOP was introduced in the year 2017 and even after that the flaw remains the same. Judiciary is being exposed by the conduct of the Judges and the selection of Judges being made giving exemption to the eligibility set out in the MOP and the judgments of the Apex Court. What is MoP good for when the Collegium itself flouts the same giving exemptions while sending proposals, for their own candidates. Judiciary is accountable to public and they shall remain blameless in appointments of Judges. Ultimately the Judges also will be receiving the tax payers money as their salary and other emoluments. This salary would be the tax paid from persons of every section in the society not the upper castes alone. 

When coming to High Court of Andhra Pradesh, it was shifted from Hyderabad, Telangana and post bifurcation, the strength of Judges was about 14 and amongst them two of them were SCs as on 01.01.2019. Later, by March, 2019 the strength was reduced by 2 and it became 12. Thereafter, in the appointments done, there is no diversity in the appointments and the concept of social welfare is completely missing. In January 2020 about 4 Judges were appointed and amongst them 1 was SC and later another 3 were appointed in May, 2020. In all these 8 members, there was no BC Judge. Again now Apex Court resolved to appoint 7 Advocates as Judges of AP high Court and amongst them there is no SC, only 1 BC woman is there. One Advocate from the Bar was appointed as High Court Judge and he belongs to BC. Thus out of 16 appointments only 1 SC and 2 BC woman were present. So it reflects that there is only monopoly of the upper castes and no social diversity in the Judicial appointments. Amongst the present appointments, the most controversial is Mr. Gannamaneni Ramakrishna Prasad who is Advocate on Record and he has no cases in High Court till June, 2021. Even he was given age relaxation and its not understood why such consideration was extended to BCs and SCs. Now the strength of the High Court is 20 amongst them 6 Brahmins, 2 Reddys, 2 Kammas, 2 Kapus, 1 velama, 1 koppula velama, 2 BCs, 1 Muslim and 2 SCs and 1 unknown. Amongst the 20 Judges 3 are from out of State. Amongst the A.P. Judges two got transferred, 1 to Kerala and 1 Telangana. If their strength is included for the sake of appointments, since it is their parent High Court, it would be around 22 and both of them are Ocs, 1 Brahmin and 1 Kamma. 

By the time Gannamaneni Ramakrishna Prasad’ proposal was sent, he was 57 years 6 months and now he completed almost 57 years 9 months. Soon he will be 58 years. Though the Apex Court many times reiterated that Judges selection shall be made within the cut off age of 45-55 in this case, it was ignored. Its not understood as to why an Advocate on Record was brought from Apex Court, though he has completely no practice in A.P. High Court. 

As per the Memorandum of Procedure that deals with appointment of High Court judges, in para 14, it states that “14. The proposal for appointment of a Judge of a High Court shall be initiated by the Chief Justice of the High Court. However, if the Chief Minister desires to recommend the name of any person he should forward the same to the Chief Justice for his consideration. Since the Governor is bound by the advice of the Chief Minister heading the Council of Ministers, a copy of the Chief Justice’s proposal, with full set of papers, should simultaneously be sent to the Governor to avoid delay”. Thus State can take initiative to promote any SC, ST and BC Advocates who are suitable for appointment as High Court Judges. 

There is much more to say, even Wikipedia won’t be sufficient to write all the things that are happening. Hence, the State Governments and Central Government shall propose candidates from SC, ST and BC social background and the Collegium also shall promote Social fabric in the appointments of Judges of High Courts and Supreme Court. There shall be genuine proposal and the Governments shall seriously pursue the matters with the Law Ministry and the Collegium, to promote social diversity, else the true social justice enumerated in the Preamble has no meaning.  

Solomon Raju

Advocate

High Court of Andhra Pradesh, Amaravathi


Axact

Jaano Jaago

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