Is demand for reservation in Higher Judiciary justified?
Out of 604 High Court judges appointed in the last 5 years, 458 are from general category, Dalit are 18 and tribal are 9. Of the total judges appointed to the High Courts of India in the last five years, 75% have come from the general category. From 2018 till now, only 9 Dalit judges have been brought to the High Court. In this way, information has been given by the Ministry of Law and Justice in response to a question.
During the monsoon session of Parliament, Lok Sabha MP from Hyderabad Asaduddin Owaisi asked some questions from the Ministry of Law and Justice regarding judicial appointments. Owaisi's question was, “is it true that 79% of the judges appointed in the last five years are from upper castes?” Are not only 2.6% of the total 537 judges appointed since 2018 from the general category? Is this an indication of unequal representation of backward classes and minorities in the judiciary? Has the Government urged the Chief Justice of India and Chief Justices of High Courts to take care of social diversity?
In response to the question of MP Asaduddin Owaisi, the Ministry of Law and Justice said that a total of 604 judges have been appointed in the High Courts since last five years i.e. 2018. Out of 604 judges, 458 are from general category, 18 from Scheduled Caste (SC), 09 from Scheduled Tribe and 72 from Other Backward Class (OBC). 34 judges are from the minority. Information about the category of 13 judges is not available.
Owaisi had raised the question of representation in the judiciary. He had asked whether the appointments of the last five years indicate unequal representation of backward classes and minorities? In response, the Ministry said that there is no provision for reservation for SC, ST, OBC or EWS in the appointment of judges. Referring to Articles 124, 217 and 224 of the Constitution, the Ministry said that the appointment of judges in the Supreme Court and High Court is done under these articles. And there is no provision of reservation in this.
In response to this question, the Ministry said that the Government has requested the Chief Justices of the High Courts to ensure social diversity while sending proposals for the appointment of judges, on Scheduled Caste, Scheduled Tribe, Other Backward Class, Minority and Women candidates. Think appropriately.
The ministry has also clarified that the government can appoint only those who are recommended by the Supreme Court Collegium.
The lack of representation of the SC/ST category was raised as a serious issue by the former President in the Parliamentary Committee Report (2000–2001). He argued that despite being eligible candidates, they are not selected due to institutional caste biases. The committee had suggested reserving seats for SC, ST and OBC in the appointment of judges in the Supreme Court and High Court.
Recommendation (SI. Nos. 9 and 10, Para Nos. 2.26 and 2.27) 1.20
The Committee had noted that the Ministry of Home Affairs had suggested to the Registrar of Supreme Court the need for framing suitable rules to provide reservation for SCs and STS in the establishment of Supreme Court. Similarly, the State Governments were also requested to persuade the High Courts to make reservation in their services on the basis of the reservation in the State services. The Committee had also noted that in the year 1976, the State Governments / UTs were intimated that the reservation for SCs and STs in case of Subordinate Judicial Services in States is applicable under Article 234 and 309 of the Constitution. Such rule of reservation in case of higher
1.21 The Committee had further noted that, at present, majority of the High Courts have made provisions for reservation in services for SCs and STS under them by framing suitable rules of recruitment. However, no such rules have so far been made by the Supreme Court. The whole attitude of the Supreme Court is very surprising. The Committee had also notes that there has been not only no reservation for SCs and STs in the appointments of officers and staff of the Supreme Court but no recruitment rules have so far been framed. The Committee had, therefore, recommended that Supreme Court and High Courts should implement reservation in recruitment and promotion of the officers and servants at various levels at the prescribed percentage and the backlog vacancies in the SC/ST categories must be filled up by conducting special recruitment drive.
According to a report by Supreme Court Observer, the first Dalit judge was appointed to the Supreme Court in December 1980. The name of the judge is K. Varadarajan. From his appointment till 2010, the Supreme Court always had only judges from Scheduled Castes. Between 2010 and 2019, before the appointment of Justice BR Gavai, not a single judge belonging to a Scheduled Caste had been appointed in the court. It is also worth noting that barring a short period of one year in the 1990s, no two Dalit judges have served in the court at the same time before August 31, 2021.
This reality changed with the appointment of Justice CT Ravikumar on 31 August 2021. Ravi Kumar and Gavai both were from SC category and both worked together for 3 years.