The Centre is preparing to introduce reservation for Dalits, tribals and other backward classes (OBCs) in the appointment of district judges, a move that didn’t find favour with the higher judiciary in the past.
Introduction of quota system in a section of the lower judiciary is part of the NDA government’s move to constitute an All-India Judicial Service (AIJS) to appoint district judges, a prerogative of the high courts at present.
The move could have political implications as it comes ahead of assembly elections in five states, including Uttar Pradesh and Punjab where Dalits and other so-called backward castes form a sizeable chunk of the electorate. The ruling BJP at the Centre is also battling allegations of being anti-Dalit, a charge magnified by recent incidents of atrocities on the lower caste group.
“We are working out the details (of reservation),” a senior government functionary told HT. After the Union Cabinet clears the proposal, the Union Public Service Commission (UPSC) will be entrusted with the AIJS examinations, said sources.
There is no reservation for any social groups in the high courts and the Supreme Court, although the collegiums try to give representation to various regions and communities in the appointment of judges.
In November 2014, the Patna high court had struck down a Bihar government notification that sought to provide reservation for SCs/STs and OBCs in lower court judges. In December, the Supreme Court rejected a plea by a district-level judge from Uttarakhand, who demanded a direction to the high court to reserve seats for SC/ST judges.
Government officials involved in drafting the proposal made light of the earlier court pronouncements. “We will go ahead with it. They (higher judiciary) are free to reject it. We had provided for reservation in the NJAC (National Judicial Appointment Commission) also,” said a senior law ministry functionary.
The NJAC law, quashed by the Supreme Court, provided for a six-member commission for appointments in the higher judiciary; one of the members had to be from SC/ST/OBC or minority community or a woman.
During discussions on judicial appointments in Parliament last May, many parties including the Congress and the BSP had demanded reservation in higher judiciary.
“Appointments in the subordinate judiciary fall within the purview of the high courts. You have to first see whether the government can constitute this judicial service,” said Manish Tewari, Congress spokesperson and a Supreme Court lawyer.
Senior advocate Rajiv Dhavan, however, said the government was treading on “dangerous grounds” by contemplating reservation in judiciary.
“In my view, a constitutional amendment would be required so that there is no further confusion. This is apart from the fact that it is neither desirable nor legal or constitutional. Electoral politics can’t be taken to such extreme limits so as to undermine the independence of the judiciary,” Dhavan said.