http://www.thehindu.com/opinion/op-ed/judges-castes-and-social-justice/article6996279.ece#comments
In the category of Civil Judges, there are 468 persons (324 men and 144 women) working currently. Of them, only 12 (10 men and 2 women) belong to unreserved categories. As many as 231 (148 men and 83 women) belong to the Backward Classes, 120 (93 men and 27 women) to the Most Backward Classes, 101 (69 men and 32 women) to the Scheduled Castes, and four (all men) belong to the Scheduled Tribes.
The agitation in Tamil Nadu for greater representation for backward communities in the judiciary is not backed by facts relating to appointments in the State’s subordinate judiciary
Mark Twain said “a lie can travel halfway around the world, while the truth is putting on its shoes.” What has been happening in the High Court of Madras in the recent past is ample proof of this.
After several days of agitation, boycott of courts, and shouting of slogans both in the corridors and inside the court halls, the representatives of some associations of lawyers and a group of men who were actually leading them summarised in two simple sentences to the Chief Justice of the Madras High Court what actually was their demand.
These two sentences were: (a) that in the list of names that could be recommended henceforth for appointment to the post of High Court Judges, there shall be no one from the Brahmin, Mudaliar, Gounder and Pillai communities; and (b) that persons belonging to communities hitherto unrepresented should alone be recommended hereafter for appointment to the post of High Court Judges.
The position taken by a section of the Bar, however minuscule it is, implies that the concept of social justice and affirmative action enshrined in the Constitution is anathema to the powers that be in the High Court and that the posts in the higher judiciary are virtually cornered by a few communities, devaluing the concept of social justice. It is high time society was made aware of the actual facts, so that no debate is based upon what a group of people propagate.
At present there are 42 Judges in the Madras High Court, including two who have come from other High Courts, namely the Chief Justice and the senior-most puisne Judge. There are four Judges of the Madras High Court functioning in other High Courts. Therefore, the working strength of Judges appointed to the Madras High Court, serving here and elsewhere, is 44. Of these, 28 belong to the Backward Classes, one belongs to the Most Backward Classes, nine belong to the Scheduled Castes, and the remaining six to the forward communities. In other words, less than 15 per cent of the total number of Judges appointed to the High Court belong to the forward communities. Even in respect of posts for which the rule of reservation at 69 per cent is applicable, the occupation of 15 per cent of posts by the forward communities cannot be said to be unconstitutional.
What the numbers reveal
The subordinate judiciary comprises (i) District Judges; (ii) Senior Civil Judges; and (iii) Civil Judges. The number of judges of the subordinate judiciary, category wise (both men and women) is as follows: There are currently 209 District Judges (147 men and 62 women) working in the State. Of them, only 17 (11 men and six women) belong to the unreserved categories. As many as 109 (74 men and 35 women) belong to the Backward Classes, 48 (35 men and 13 women) to the Most Backward Classes, 34 (27 men and seven women) to the Scheduled Castes, and one belongs to the Scheduled Tribes.
The subordinate judiciary comprises (i) District Judges; (ii) Senior Civil Judges; and (iii) Civil Judges. The number of judges of the subordinate judiciary, category wise (both men and women) is as follows: There are currently 209 District Judges (147 men and 62 women) working in the State. Of them, only 17 (11 men and six women) belong to the unreserved categories. As many as 109 (74 men and 35 women) belong to the Backward Classes, 48 (35 men and 13 women) to the Most Backward Classes, 34 (27 men and seven women) to the Scheduled Castes, and one belongs to the Scheduled Tribes.
In the category of Senior Civil Judges, there are 194 persons (136 men and 58 women) working currently. Of them, only seven (five men and two women) belong to the unreserved category. As many as 103 (68 men and 35 women) belong to the Backward Classes, 51 persons (38 men and 13 women) to the Most Backward Classes, and 33 (25 men and eight women) to the Scheduled Castes.
“In the race for posts, the forward communities are not in the picture to a great extent”
As for minorities, of the 864 judicial officers working in the Tamil Nadu subordinate judiciary, 45 persons belong to the Christian, and 42 to the Muslim, communities. In other words, nearly 10 per cent of judicial officers working in the State belong to the minority communities, and this number is higher than the number of judicial officers belonging to the forward communities.
Recruitment in 2012
Whenever a drive for recruitment is undertaken by the High Court of Judicature at Madras, a particular pattern emerges which belies any accusation that social justice is being denied. The post of Civil Judges, known in common parlance as District Munsifs and Judicial Magistrates, is to be filled up only through direct recruitment. The post of District Judges (Entry Level) can be filled up as follows: (i) up to 25 per cent by way of direct recruitment; (ii) up to 10 per cent by way of limited departmental competitive examinations; and (iii) up to 65 per cent by way of promotion on the basis of seniority-cum-merit.
Whenever a drive for recruitment is undertaken by the High Court of Judicature at Madras, a particular pattern emerges which belies any accusation that social justice is being denied. The post of Civil Judges, known in common parlance as District Munsifs and Judicial Magistrates, is to be filled up only through direct recruitment. The post of District Judges (Entry Level) can be filled up as follows: (i) up to 25 per cent by way of direct recruitment; (ii) up to 10 per cent by way of limited departmental competitive examinations; and (iii) up to 65 per cent by way of promotion on the basis of seniority-cum-merit.
Normally, direct recruitment to the category of Civil Judges (District Munsifs and Judicial Magistrates) is undertaken by the Tamil Nadu Public Service Commission while direct recruitment of District Judges (Entry Level) is done by the High Court itself. Since all posts in the subordinate judiciary fall within the Tamil Nadu State Judicial Service, any direct recruitment to these posts should follow the rule of reservation prescribed in Rule 22 of the Tamil Nadu State and Subordinate Services Rules and the 200-point roster prescribed in Schedule III to these Rules.
In 2012, when the Tamil Nadu Public Service Commission ran into rough weather, the High Court took upon itself the entire task of direct recruitment of about 185 Civil Judges (District Munsifs and Judicial Magistrates). In response to a notification issued in January 2012 by the High Court for direct recruitment, 10,443 candidates applied. The applications of some were rejected and 8,998 candidates were issued hall tickets. Under the Recruitment Rules, all the applicants were required to write examinations in four papers. The Rules stipulate that to qualify for viva voce, candidates belonging to the Scheduled Castes and Scheduled Tribes should secure 30 per cent marks in each of the four papers; those belonging to the Backward Classes and the Most Backward Classes 35 per cent; and candidates belonging to the General Category (unreserved category) 40 per cent.
Of the 8,998 candidates who were issued hall tickets, only 6,702 took the exams in all the four papers. Of these, only 157 belonged to the unreserved General Category. There were 228 Muslims (who had an internal reservation among the Backward Classes), 3096 candidates belonging to Backward Classes (Non-Muslims), 1838 to the Most Backward Classes, 42 to the Scheduled Tribes, and 1341 to the Scheduled Castes.
After the valuation of the answer papers, it was found that 111 Scheduled Caste candidates and five Scheduled Tribe candidates had secured a minimum of 30 per cent marks in each of the four papers and qualified for interview. Similarly, 220 candidates belonging to Backward Classes (other than Muslims), 24 candidates to Backward Muslims, and 95 candidates belonging to Most Backward Classes qualified for interview. Only five candidates belonging to the unreserved category were found to have secured 40 per cent and above in each of the four papers.
All the above 460 candidates were called for viva voce. Of these, a total of 174 were ultimately selected and appointed as District Munsifs and Judicial Magistrates in 2012. Out of these 174, 75 belonged to the Backward Classes (Non-Muslims), 12 to the Backward Classes (Muslims), 43 to the Most Backward Classes, 36 to Scheduled Castes, three to the Scheduled Caste (Arunthathiyar), and four to Scheduled Tribes. There was only one appointment from the forward communities.
Recruitment of District Judges
In 2013, the High Court undertook the exercise of direct recruitment of 23 District Judges (Entry Level). These 23 vacancies were relatable to roster point Nos.18 to 40 of the III Schedule to the General Rules for Tamil Nadu State and Subordinate Services. Therefore, one out of those 23 vacancies was reserved for Scheduled Caste (Arunthathiyar), three for the Scheduled Castes (two men and one woman), four for the Most Backward Classes (three men and one woman), one for Backward Class Muslims (woman), six for the Backward Classes (other than Muslims – four men and two women), and the remaining eight for the General Turn (four men and four women).
In 2013, the High Court undertook the exercise of direct recruitment of 23 District Judges (Entry Level). These 23 vacancies were relatable to roster point Nos.18 to 40 of the III Schedule to the General Rules for Tamil Nadu State and Subordinate Services. Therefore, one out of those 23 vacancies was reserved for Scheduled Caste (Arunthathiyar), three for the Scheduled Castes (two men and one woman), four for the Most Backward Classes (three men and one woman), one for Backward Class Muslims (woman), six for the Backward Classes (other than Muslims – four men and two women), and the remaining eight for the General Turn (four men and four women).
A total of 3273 candidates applied for these 23 posts of District Judges. After the rejection of 34 applications, hall tickets were issued to 3239 candidates and 2688 of them wrote the examinations in both papers. Of these, only 165 candidates secured a minimum of 35 per cent in the aggregate: 16 (10 men and six women) under the unreserved categories, 97 (78 men and 19 women) belonging to the Backward Classes; six (three men and three women) to Backward Class Muslims; 34 (30 men and four women) to the Most Backward Classes; and 12 (11 men and one woman) to the Scheduled Castes.
All 165 candidates were called for interview and 23 of them were selected for appointment. Although eight vacancies fell under the open category, only two candidates belonging to forward communities were selected (See table: “Making the grade”).
From this, it is clear that in the race for posts in Tamil Nadu’s subordinate judiciary, the forward communities are not in the picture to a great extent. The number of posts occupied by them in the Madras High Court is less than 15 per cent, which is permitted even statutorily in case the rule of reservation at 69 per cent is applied. But unfortunately, a section of the bar either feigns ignorance of these facts or suffers from selective amnesia.
(Justice K. Chandru is a retired Judge of the High Court of Madras.)
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Judges and castes: a counterview
In reference to the article, “Judges, castes and social justice,” by Justice (retd.) K. Chandru, published on March 16, 2015, here are edited excerpts from a statement by C. Vijayakumar, President, Lawyers for Democracy and Social Causes, Chennai:
The author has sought to besmirch the lawyers’ agitations against l’affaire judges’ appointment to the Madras High Court.
Though there were dissensions and discontent over the merits of the candidates recommended for elevation as Madras High Court Judges in the past few years, it was only in December 2013 that the Madras High Court Advocates’ Association (MHAA) passed unanimous resolutions demanding the return of the 12 names forwarded for appointment as Judges.
There were unprecedented protests against a list of 10 names from the Bar. It was widely perceived that it was not actually drawn up by the then Madras High Court Collegium. The MHAA sought its return by the Supreme Court Collegium.
A couple of Writ Petitions were also filed. On one of them, a Division Bench of the High Court passed orders to maintain the status quo on the list. Ultimately, the Supreme Court acknowledged the shortfalls in the list and ordered its return, underlining the need to provide representation to the unrepresented and under-represented sections in the matter of selection of High Court judges. It observed: “Appointments cannot be exclusively made from any isolated group nor should it be predominated by representing a narrow group. Diversity therefore in judicial appointments to pick up the best legally trained minds coupled with a qualitative personality, are the guiding factors that deserve to be observed uninfluenced by mere considerations of individual opinions. It is for this reason that collective consultative process as enunciated in the aforesaid decisions has been held to be an inbuilt mechanism against any arbitrariness.”
The decision to return the list was unprecedented and threw light on the “selection process”, which lacks any intelligible criteria and transparency. It often led to ineligible persons being recommended for selection.
The present round of protests by the MHAA is primarily on the draw of names in phases and not in one instalment, apart from the fact that various unrepresented and under-represented sections of society, women and the minorities were excluded.
The article did not address the core issue of recommending persons from over-represented communities, but attempted to deflect the issues by citing statistics in relation to the subordinate judiciary. Even in the statistics, those meritorious candidates who made it to the selection list under the open category have been bottled in their respective communities by the author. This is unfair.
The crux of the issue, even in the form stated by the author, that communities such as Brahmin, Mudaliar, Gounder and Pillai are over-represented in the Madras High Court cannot be disputed. From the Brahmin community there are six judges including the present Chief Justice and the seniormost puisne judge. Even if those two are not counted, the number is not four but five, when one functioning in the Punjab and Haryana High Court is included as his parent High Court is Madras. As regards those from the three other communities that come under the category of Backward Classes, Madras already has a large chunk of them, with Mudaliars and Gounders numbering more than six each. Except for two, all of them were selected from the Bar. In this context of numbers, the MHAA’s demand against inclusion of more names from among these communities is justified.
The article says there are nine judges belonging to the Scheduled Castes. However, only three of them have been elevated from the Bar; the remaining six were elevated from the subordinate judiciary. They entered the service by rule of reservation and their elevation was as per the norms, and not on the basis of caste. The implementation of Rule of Reservation in the subordinate judiciary, like all the services under the State, is the fruit of the movement for social justice initiated by a “minuscule section” a century ago.
The lawyers are agitating on the larger issue of social justice. The author’s attempt to stamp the lawyers’ protest as that of a ‘minuscule section of the Bar’ constitutes a wilful misinformation campaign. It is a motivated attempt to divide the Bar, which will not succeed.
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