Justice D. Hari Paranthaman
Retired Judge of Madras High Court
On 18th August 2023, a discussion meet was held in Madurai by the Legal wiverof the Dravidar Kazhagam. The objective was to stress the dire need of Social Justice in the appointment of judges for the Supreme Court and High Courts. Retired Judge of Madras High Court Justice D. Hari Paranthaman delivered a significant speech on the occasion. The excerpts from his speech are as follows:
Sufficient number of qualified persons from the Scheduled Castes and Tribes, Backward Classes, womenfolk and the minorities should be appointed as judges in the Supreme Court, High Courts and in the higher judiciary. Social Justice rests in assuring such appointments. In fact, not only in higher judiciary, but also in all the departments, especially in higher posts that have decision making tasks, the above cited groups of persons must be serving in sufficient numbers. That would truly be social justice.
Only 30 years after the Constitution came into force, in 1980 a judge was appointed for the first time in the Supreme Court. He was Justice A. Varadarajan hailing from the Scheduled Caste who was appointed from Madras High Court in Tamil Nadu at the Supreme Court. Even in Madras High Court that has been functioning since 1862, he was the first judge appointed from the Scheduled Caste.
At any given point of time, we can find more than 10 brahmins alone serving as the judges in the Supreme Court. According to the 2011 report of the National Commission for the Scheduled Castes, only 21 Scheduled Caste judges have so far been serving altogether, in all the Indian High Courts, since the constitution came into force. This report of the year 2011 also states that among 24 high courts not even one Scheduled Caste judge has so far been appointed in 14 of them.
If we study the appointment of Backward Class judges in the Supreme Court and the High Courts in India, we find that a Backward Class judge from Tamil Nadu was appointed in 1988, for the first time in the Supreme Court. He was Justice S.Ratnavel Pandian. In other words, it can be said that during the period of 38 years, from 1950 to 1988, not even one from the Backward Classes was appointed as judge at the Supreme Court.
When the Most Backward Class (MBC) was formed separately from the Backward Class(BC), no one from the MBC class in Tamil Nadu was appointed as judge at the Supreme Court. In UttarPradesh and Bihar the Yadavas live in large numbers. Yadavs like Mulayam Singh Yadav and Lalu Prasad Yadav could become the Chief Ministers but none of the Yadavs could so far become a Supreme Court judge.
Similarly, in Kerala the Ezhavas form 25 percent of the state population; but not even one from that class could so far become a Supreme Court judge. However many of the Ezhava Community from the Congress and the Communist parties, have been the Chief Ministers of Kerala. The present day Chief Minister of Kerala, Pinarai Vijayan, also belongs to the Ezhava community.
During 2010 – 2011, once I visited the National Judicial Academy in Bhopal, Madhya Pradesh. The grandson of B.P. Mandal was serving then as a judge in the High Court of Patna. When I met him in the Judicial Academy, he told me that except him, nobody from the SC/ST or BC class served as a judge in the Patna High Court. In Northern states, there is no reservation in the appointment of judges even in the District Courts. Hence no one from Backward Class gets an opportunity from the Bench to become a High Court judge.
In Tamil Nadu, there is reservation in the appointment of judges even in the District Courts. Hence persons from all castes get appointed as judges in High Courts, shortlisted from among the District Court judges. But practising lawyers of several Castes are not being appointed directly as High Court judges even in Tamil Nadu. One particular community is called in different names as Konars, Idayars and Yadavars. A lawyer hailing from this community was appointed as a judge in Chennai High Court, only recently.
Since Modi began ruling in 2014, whenever 5 or 6 High Court judges were appointed in Tamil Nadu, one of them might not be from the scheduled caste; but at least one of them would have certainly been from the Brahmin community. 9 brahmin lawyers have now been elevated as judges in Madras High Court. Scheduled Castes, Vanniyars, Mukkulathors are in large numbers in society. Not even totally nine of them have so far been elevated from the position of lawyers to High Court judges. If this is the pitiable condition in Tamil Nadu one can guess the situation in the High Courts of other states in India.
If we analyse women’s condition in the appointment of high court and supreme court judges, we find that among all the 266 supreme court judges appointed so far, only 11 are women. Scheduled Caste lawyers were being appointed in 1980 and Backward Class lawyers in 1988, but it was only in 1989 that Justice Fathima Beevi from the Kerala High Court was appointed for the first time as a Supreme Court judge. So far none of the women hailing from the SC or ST tribe has been appointed as Supreme Court judge. None of the women has so far served as the Chief Justice in Supreme Court. Justice B.V. Nagarathna serving the supreme court now would be the Chief Justice in 2027, only for a period of one month. Among the judges only one woman, Justice Bhanumathi, belongs to the backward class in Tamil Nadu.
It is only in Madras High Court that women judges are in large numbers. 13 women judges are in service at Madras High court. Compared to Madras High Court, the number of judges is large in the High Courts of Bombay, Calcutta, Allahabad, Punjab and Haryana but the women judges in all those courts are much less than women judges in Tamil Nadu. Women form half of our population but as per the press release of the Union Government, as on 29th July 2022, among the total number of lawyers in the country only 15 per cent lawyers are women.
If we study the position of the minorities in the appointment of High Court and Supreme Court judges, we find that sufficient number of the minorities were appointed in the Supreme Court until Modi came to power in 2014. Even in High Courts they had enough representation to some extent. But once the rule of Modi commenced, the representation of the minorities got badly affected and declined.
As far as the Islamists are concerned, more than one of them would be Supreme Court judges. But this changed after 2014 during the BJP rule. There was in fact a drastic change against the Islamists. So far they have not found any relief. In 2004, Akhil Qureshi of the Islam sect was appointed as Gujarat High Court judge. He began service since 2019 as the Chief Justice. Even after 18 year long service he was not appointed as Supreme Court judge. He retired in 2022 without an elevation. He was then in the senior-most position, even in an All India level. Inspite of the efforts of the collegium, Justice Qureshi could never rise as a Supreme Court Judge. Justice K.M.Joseph of Uttarakhand High Court was also victimised. The union government headed by Modi is still preventing John Satyan from becoming a Madras High Court judge inspite of the recommendation of the Supreme Court Collegium. Since 2014, the BJP headed government has not appointed so far any Sikh judge in the Supreme Court.
As per the page 47 of the 133rd statement released on 7th August, 2023 by the Parliament Committee for Law and Judiciary
(a) “As per the data provided by the government on the social status of the judges of the High Courts and otherwise also, it can be seen that our higher judiciary suffers from ‘diversity deficit’. The representation of SCs, STs, OBCs, WOMEN and MINORITIES in the higher judiciary is far below the desired levels and does not reflect the social diversity of the country. In recent years there has been a declining trend in representation from all the marginalised sections of Indian society.”
(b) “Further, as of now, data related to the social status of High Court judges are available from 2018 onwards, the committee recommends the Department of Justice finds ways and means to collect such data in respect of all judges presently serving in the Supreme Court and High Courts. For doing this, if required, necessary amendments may be brought in the respective Acts/Service rules of the judges.”
According to the statements cited, between 2018 and 2023, 601 vacant posts were filled in High Courts. Among them 457 were of Upper Caste; 18 from SC; 9 from ST; 72 from the OBC; 91 women; 32 from minorities and 13 who hail from none of the above. Hence, it is clear that there is no pluralism in all these appointments, because of the gross disproportion.
