The following is the ‘Introductory Background’ in the Report of the Committee on the Welfare of Scheduled Castes and Scheduled Tribes (1999-2000) under the auspices of Ministry of Law, Justice and Company Affairs (Department of Justice) Government of India.
1.1 “The administration of law and justice is intimately linked with the social philosophy of the judiciary and the social philosophy cannot be entirely separated from the social origins of those who dispense justice.”
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1.2 It is now universally admitted that social composition of the higher judiciary, which is visualized as an “arm of the social revolution”, is of crucial importance in the administration of justice in any country. The social composition of judiciary inevitably affects and influences its judgements. The judges are not super-human beings. Howsoever objective and fair they may try to be in their decisions or interpretation of law on any socio-economic issue, they cannot but be influenced by many considerations. Nearly a hundred years ago, the US President Roosevelt said: “The decisions of the courts on economic and social questions depend upon their economic and social philosophy.” A judge’s mind is not “a mechanical legal shot machine”. His judgement is influenced at least unconsciously by his likes and dislikes, prejudices and predilections, his entire philosophy of life, in the atmosphere of the ongoing social struggles in the country, the resultant bitterness cannot leave the judges without being influenced in their judgements as to the right or wrong of the struggles. Being members of the struggling communities they are bound to be partisan, because they share the sentiments and prejudices of their communities. In the words of Justice O. Chinappa Reddy, “The Court belongs to a class…when the class consciousness takes over”. As observed by the former Chief justice of India P.N. Bhagwati, since judges are drawn from the class of well-to-do lawyers, they unwittingly develop certain biases. The members of the judiciary have so far been drawn from the very section of society which is infected by ancient prejudices and is dominated by notions of gradations in life. The internal limitation of class-interests of such judges does not allow them full play of their intellectual honesty and integrity in their decisions. Their judgements very- often betray a mindset more useful to the governing class than to the servile class. Such judges can have little understanding of the living forces operating in the servile classes and no sympathy for any real measure designed to raise their dignity and progress. As an eminent former Supreme Court Judge (Justice Desai) correctly observed: “Our judiciary has retained its traditional blindfold on its eyes and thereby ignored perceived realities:” It is naive to believe that in the present state of affairs in our society justice is done outside the ruling fold.
1.3 The dicey should, therefore, be so composed as to reflect the socio-economic realties of the nation’s life. It is in this context that the recent observations of our President have assumed great significance. He correctly said: “It is a matter of importance that in the judiciary all major regions and sections of the society are represented to the extent possible consistent with requirements of merit and the high standards maintained by the judiciary. The argument is not that judiciary should follow some sort of proportional representation.” What he has said is nothing but “a reiteration of the mandate of the Constitution and the social philosophy contained in its Preamble.” The unseemly controversy raised over such innocuous suggestions of the President was not only unfortunate but also quite significant in the context of the fact that the present reservation-free judicial system has proved to be very unsatisfactory if judged by the state of affairs of the dispensation of justice. The President’s suggestion is totally in tune with the constitutional objectives as well as the declared policy of all governments and political parties. It is patently unfair to raise a bogey of Presidential activism or plea for Mandalisation of the higher judiciary. Viewed in the right perspective, the President’s suggestion should have been seen as a deep concern for justice to the weaker sections and for an honest attempt to rectify a fault.
1.4 There is very little disagreement among the people over the falling credibility of our judiciary. According to some case studies, in the selection and appointment of judges of the Supreme Court some attention has been given to regional allocation and religious background in order to preserve a semblance of representative framework. But social background was never a consideration for the composition of the higher judiciary, obviously under the false view of its being communal representation. In fact, there is no dearth of evidence of the fact that communal bias has been visible in the judiciary upto the highest level. Communal bias is a necessary consequence of the social system we are living under. It’s a premise which is recognized even by the Criminal Procedure Code. There are specific provisions in the Cr. P.C. showing the possibility of communal bias in the judiciary. The existence of communal bias in the issues of a communal character cannot, therefore, be ruled out. In such a situation, there is no escape from accepting the principle of equitable representation of all major social groups in the judiciary also for which there is absolutely no bar in our Constitution. It has become inevitable in the deteriorating situation created after the last 50 years since Independence. In the name of autonomy of the judiciary attempts have been made to create an Imperium in Imperio which is not the intention of the Constitution. It is high time for the Parliament to enact a Judiciary Act spelling out the governing principles of the proper functioning of the Judiciary, specially the Supreme Court and the High Courts.
…to be continued in the next issue