Why reservations in the judiciary is a bad idea

ALOK PRASANNA writes from Hyderabad: We have heard of bloody coups, bloodless coups, military coups, silent coups, and even coups by mercenaries (and, no, not just those of us who have read Frederick Forsyth‘s Dogs of War). However, unique in the annals of usurpation of the constitutional functions of a government must be the coup d’état by judgment.

Yes, in 1999, with barely a mention on the front pages, the Supreme Court of India completed a process it began in 1993 by completely, almost unconstitutionally, usurping one of the roles of President and the Executive. And it was not some piddling guideline or rule the SC deigns to legislate from the bench every other day.

The SC, in 1999, managed to completely and totally usurp the executive’s constitutionally granted function of appointing judges (to the High Court and SC) and vest this enormous power with itself.

Whereas most democracies, the real ones not the ones which use the word lengthen the official name of the country (think “Democratic” People’s Republic of Korea), usually have some executive or legislative body nominate and appoint members of the higher judiciary, in India alone do we see the unedifying sight of the higher judiciary nominating and appointing judges to the High Court and Supreme Court.

The decision in 1999 reduced the President once more to a mere rubber stamp where this time, he would be bound by the “recommendations” of the collegiums of judges in charge of appointing judges.

The best part, of course, is that the popularly elected legislature, the Parliament can do absolutely nothing about it since any amendment can and will be struck down on the grounds of violating the “basic structure” of the Constitution. Never mind that a body deciding its own appointments and removals is against the basic structure of the Constitution.

It wouldn’t be so bad if there was a modicum of transparency in the process. While other constitutional authorities such as the President and the Parliament are exposed to the ruthless glare of the Right to Information Act, the judiciary has perched itself on a higher pedestal as the sole constitutional authority which refuses to adhere to the right to information.

Walk around the corridors of the Supreme Court and the whispers of favouritism, nepotism and regional bias float from all corners. Of course no one will dare air any of these allegations in the open for fear of invoking the contempt thunderbolt wielded by the Court.

Like all other bodies which have wielded such uncontrolled power, it seems to have gone straight to the collective head of the judiciary. So we are faced with sight of the CJI fluffing on his law to defend the judiciary’s non-transparent behavior. Not to mention the frequent (ab)use of the contempt law against journalists who dare to question the court.

Naturally, instead of trying to do something about this sorry state of affairs, our Parliamentarians have decided to add fuel to the fire by asking for reservations in the judiciary.

Reservation in the judiciary is nothing new. There is supposed to be an unofficial “minority”(read Muslim) quota, a Scheduled Caste quota and a token woman quota (currently unfilled) in the Supreme Court. Various High Courts have their own unofficial quotas on local caste, gender and religious bases (for instance check out the number of Reddys in the AP High Court).

Given the strict rule of seniority in the appointment of the Chief Justice of India, it is possible to pick and choose judges in a manner that will see them get elevated to the post in due course. Indeed the present CJI was appointed on the basis that he would be senior enough to become the first Dalit CJI when the incumbent retired.

Yet while these unofficial quotas are always denied in public, they are seen as a tacit acceptance by the highest Court that it is not inclusive enough.

So what is wrong by the demand of the OBC group to have reservations in the higher judiciary?

For one, it goes against constitutional propriety for one branch of the Government to be dictating the composition of another on divisive considerations (I don’t suppose the Parliament would enjoy the judiciary making observations about its caste composition).

It was bad when Indira Gandhi did it on “ideological” grounds, and it is bad when done on caste considerations.

For another, this is precisely the kind of thing the judiciary can wave at naysayers and close ranks against any move to improve transparency and bring about genuine reform. Short of driving up the steps of the Supreme Court in armoured cars, the Parliament or Executive can really do nothing much against a hostile and united judiciary.

Why, as Musharraf found out, even that may not be successful all the time.

Lastly, such a move, if undertaken successfully, will weaken, rather than reform the higher judiciary; the one arm of the Government middle-class India trusts and sees as its own despite some obvious flaws.

The higher judiciary’s one core constituency that is willing to forgive all its seeming shortcomings is the 300 million or so people who constitute the middle class in India. From PILs about the Ganga to the Delhi buses and (ironically enough) the Right to Information Act, middle-class India has always turned to the higher judiciary as its first and last hope.

For all the causes without a delimited constituency, the judiciary has been more than willing to create a constituency of its own with “creative” orders and stays. The judiciary knows that it can bank on the support of this constituency to hold off any attempts to weaken and divide it.

Practical demonstration: Pakistan.

Perversely, as long as it has the firm backing of middle-class India, the judiciary will continue to resist attempts at reform of the judiciary by Parliament, whether to ensure transparency or inclusivity (read quotas). Though often called the “least dangerous arm of Government” the judiciary has sufficient strength to hit the Government where it hurts, and it will continue to use its powers to hurt the Government and champion the cause of its constituents.

The judiciary is often compared to the “lions under Solomon’s throne”, but it seems that King Solomon is having a slight problem convincing them to get off his seat.