Sunday, August 7, 2022

Reflecting the Soul of India

Even as the collegium recommended nine names as judges to the apex court, there was none from minority communities. The Court should reflect the composite culture and constitutional values of the nation.

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By Lokendra Malik

With the Supreme Court collegium recommending nine names for appointment as judges, it has ended a nearly two-year-long stalemate. During his tenure, the previous chief justice of India (CJI), SA Bobde, had called several meetings of the collegium, but all ended without a consensus. When Justice NV Ramana assumed the office of CJI in April, people hoped that he would break the impasse. Thankfully, he did, and a consensus in the collegium led to the recommendation of nine persons—eight judges of High Courts, and one senior advocate of the Supreme Court—to be appointed to the top court.

The collegium has also made history by recommending the name of a woman judge, likely to become the CJI in 2027 for a few months based on seniority. Three women judges, for the first time in the country’s judicial history, have been recommended for appointment as judges of the Supreme Court, which has mostly been a male bastion.

If the centre clears the collegium’s recommendations in time, the apex court will have 33 judges, out of the total sanctioned strength of 34. But along with this exercise, the collegium was also expected to consider the interests of the minorities. Sadly, it forgot them. Currently, the Supreme Court has only one Muslim and one Christian judge. Justice Rohinton Nariman, a Parsi, retired a few days ago. There is no Sikh, Jain, Buddhist, or Adivasi judge in the Supreme Court presently.

As of now, we have two Muslim chief justices and some senior judges in High Courts. At least, one of them should have been brought to the apex court, given the under-representation of Muslims in the Court. It is necessary in order to sustain the trust of minorities in the institution of the judiciary. The Court decides several important issues relating to Islamic law which can be adjudicated easily with the help of a Muslim judge on the bench.

In addition to this, there are many brilliant Sikh lawyers and judges in the country who also deserve appropriate opportunities at the apex judicial institution. After Muslims, Sikhs are the third largest minority community in the country. We need at least one Sikh judge in the Supreme Court. It is surprising that the collegium could not find even a single Sikh judge/lawyer to be elevated to the top court.

Also, there is no dearth of brilliant Jain and Buddhists lawyers and judges in some of the High Courts and the collegium should consider this possibility as well. The apex court should reflect the composite culture and constitutional values of the nation. Only a few castes and communities cannot be allowed to dominate the higher judiciary. Let it reflect the collective soul of the nation.

Media reports suggest that during the tenure of Chief Justice SA Bobde, a senior collegium member, Justice RF Nariman, insisted on the elevation of Justice Akil Kureshi, chief justice of Tripura High Court (No 2 in all-India seniority) before any other judge was selected. It seems a deadlock occurred in the collegium because of his courageous stand on various issues and no names of judges were finalised for a long time.

Significantly, just a few days after Justice Nariman’s retirement, the collegium met quickly and finalised the names of nine judges in a single meeting without any opposition. But the name of Justice Kureshi was not there. This raises several questions about the collegium’s decision-making process. While the collegium had to act urgently to fill up the vacancies of judges in the Supreme Court, it was equally duty-bound to consider the concerns raised by a senior judge regarding the compliance of seniority norms.

People have a right to know the reasons for the non-elevation of Justice Kureshi to the top court. Admittedly, the Constitution does not make any provision for reservation in the Supreme Court and High Courts, but judge-makers always keep social considerations in mind. There is always a need to maintain a balance in judicial appointments by selecting deserving people from different castes, communities, religions, and regions.

Many constitutional pundits rightly believe that the Supreme Court should always have around 9-10 judges from minority communities out of 34 judges. It is not a bad idea. As far as women are concerned, the collegium has rightly recommended the names of three of them. Women empowerment in the judicial branch is the need of the hour. So, is the participation of the minorities in the judiciary.

No judge should be rejected because he belongs to a particular community or the government does not like him because of his judgments. Merit must be the principal criterion of judicial appointments, not the Executive’s likes or dislikes. The Supreme Court collegium is mandated to exercise its powers within the four corners of the Constitution. It was established to protect the independence of the judiciary, and its actions should reflect its objectives. Its decision-making process needs to be made more transparent, accountable and impeccable. We need judges who can stand up against anybody, including the powerful government without fear or favour.

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In Supreme Court Advocates-on-Record Association vs Union of India (1993), the Court said: “In the context of the plurastic society of India where there are several distinct and differing interests of the people with multiplicity of religion, race, caste and community and with the plurality of culture brought together and harmonised by the Constitution makers by assuring each section, class and society ‘equality of status and of opportunity’, it is inevitable that all people should be given equal opportunity in all walks of life and brought into the mainstream so that there may be participation of all sections of people in every sphere including the judiciary…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 not by any selective or insular group.”

—The writer is Advocate, Supreme Court of India

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