The Supreme Court stay on OBC reservation is among several judgements
unsympathetic to ‘lesser’ castes. The judiciary has to be socially
accountable
K. VEERAMANI
On November 25, 1949, Dr BR Ambedkar sounded a grave warning in the
Constituent Assembly: "On January 26, 1950, we will have equality in
politics and inequality in social and economic life. We must remove
this contradiction at the earliest moment, or else those who suffer
from inequality will blow up the structure of political democracy
which this Assembly has so laboriously built up." To guard against
such an explosion of discontent, the Preamble of the Constitution
clearly spells out the objectives of securing "to all its citizens
JUSTICE, social, economic and political" as well as "EQUALITY of
status and of opportunity."
In 1950, the year in which the Constitution came into operation, one
Champakam Dorairajan, a Brahmin candidate, filed a petition for
issuance of a Writ of mandamus restraining the (then composite) state
of Madras from enforcing a communal Government Order that provided for
reservation in electoral constituencies. A full bench of the Madras
High Court upheld the petitioner’s plea. The state appealed in the
Supreme Court. A seven-judge bench dismissed the appeal. It was this
judgment that necessitated the Constitution First Amendment, which
added Clause (4) to Article 15. (It was later found that the woman had
filed the writ petition under a false affidavit. She was never
contesting from the seat.)
The First Amendment was a sequel to a massive agitation initiated by
Periyar EV Ramasamy against the invalidation of the communal go that
had been in force since 1928, a fact admitted by then prime minister
Jawaharlal Nehru in the Parliament in May 1951. Periyar had warned in
1924 at a public meeting in Salem that in the absence of a just system
of communal representation (reservation) there would be Brahminocracy,
and not democracy, in independent India.
Periyar had known through his long experience that the Brahmins made
use of their position in the judiciary to denigrate and put down the
lower castes. A clear example of this was the case of Malaiyappan, a
district collector at Tiruchirappalli, whose order regarding a land
dispute in 1955 was challenged in court. After a writ petition was
filed, a two-judge bench of the Madras High Court set aside the
collector’s order in October 1956. There had never been an allegation
against Malaiyappan in his 30 years of service. Periyar, who had no
personal knowledge of the collector, read about the court’s decision
and in a big public meeting in Tiruchirapally on November 4, 1956,
condemned the disparaging remarks the judges had made against
Malaiyappan. Two days later, an editorial was written in the same vein
in the Tamil daily Viduthalai, which was edited and published by
Periyar’s wife Maniammaiyar. A contempt petition was filed against
Periyar and Maniammaiyar in the Madras High Court. Periyar did not
choose to defend, but read out a statement explaining his stand before
Chief Justice PV Rajamannar and Justice ASP Iyer. The court decided
that Periyar had committed contempt and did not accept his contention
that their decision was influenced by the Aryan-Dravidian divide or by
the fact that the judges belonged to a community different from that
of the officer.
Recently, the author of this article also had to appear in the Madras
High Court as a respondent in a contempt petition, but one the court
did not ultimately entertain.
The New Indian Express dated October 18, 2006, had reported that a
senior judge of the Madras High Court, Justice SJ Mukhopadyaya, had
summoned the State Election Commissioner while hearing a writ petition
regarding elections to local bodies. When the Secretary to the sec, a
senior ias Officer, appeared in response to the summons, Justice
Mukhopadyaya said, "When the court says an official should be present
then he should be present before the court, not his peon." Later, when
the sec appeared before the Division Bench and offered Vanakkam
(salutation), Justice Mukhopadyaya said: "I am not here to accept your
salute".
As the members of our movement felt that the honourable Justice had
treated the high officials in a contemptuous way, we wrote a letter to
the Chief Justice demanding that Mukhopadyaya should express regret.
When our demand was not met we organised a peaceful picketing on
November 1, 2006, of which we had informed earlier. These events were
mentioned as grounds for a contempt petition against us.
The recent interim stay of the law that provides for 27 percent
reservation for Other Backward Classes in higher educational
institutions by a two-judge bench of the Supreme Court is an instance
of the uncooperative attitude of the judiciary in implementing the
Constitutional obligation of promoting social justice. It is strange
that when a nine-judge bench had allowed 27 percent reservation in job
opportunities in 1992, a two-judge bench now refuses to reserve seats
for educational opportunities that are essential to prepare the
students for the jobs.
Since Independence, only one person, Justice Ratnavel Pandian, has
become a judge of the Supreme Court from among the obcs. Even the scs
and sts get only meagre representation. Is there any Constitutional
bar to reservations for disadvantaged communities in the higher
judiciary? When there are reservations in the judiciary up to the
district level why are they denied the same at the higher level?
The present system of selecting judges to the higher courts through
the Collegium only helps the upper castes to keep the posts their
close preserve, a situation even KR Narayanan, the late former
president, lamented about. The method of selection through a collegium
is not provided in the Constitution but has evolved through judicial
interpretation. In SP Gupta’s case, known as the First Judges Case
(1982), a majority of the seven-judge bench held that consultation
with judges of the higher courts envisaged in Articles 124 and 217 was
not concurrence. It approved the original position of giving primary
voice to the President (the elected executive) in the appointment of
judges. However, in Supreme Court Advocates on Record Association Vs
Union of India (popularly known as the Second Judges Case, 1993) the
majority of the nine-judge bench held that consultation with the Chief
Justice of India was concurrence. It said the cji should have a
collegium of two senior-most judges to help him in the selection of
candidates. By this judgement, the Supreme Court wrested the power of
appointment of judges from the Executive. In the 1998 "Presidential
reference", also known as the Third Judges Case, the Supreme Court
reiterated its earlier view and increased the collegium strength to
Chief Justice plus four senior-most judges of the apex court. When the
selection of judges has been taken away from the popularly elected
executive, the judges are in principle accountable to no one! It may
be recalled in this context that Dr BR Ambedkar did not approve of the
proposal of assigning to the cj a primary position in the appointment
of judges, and had declared in the Constituent Assembly that "The
Chief Justice is a man with all the failings, all the sentiments and
all the prejudices which we as common people have."
The higher judiciary continues to be dominated, rather monopolised, by
the upper castes. It is no wonder that its decisions are biased
against giving equal status and opportunity to underprivileged
communities. For instance, in Krishna Singh Vs Mathur Ahir (1980 sc
707) the Supreme Court had to consider the question whether a Shudra
can become a Sanyasi under the Hindu Law. The High Court held that the
principle of Hindu Law which says a Shudra cannot become a Sanyasi was
discriminatory and violated Article 14 of the Constitution. The
Supreme Court, however, held that a Shudra could not become a Sanyasi
as the Court, in applying the personal Hindu law, should derive the
law from recognised sources of Hindu law such as the Smiritis, and
should not apply the modern concepts of equality and equal rights.
A glaring instance of caste prejudice had come to light in the case of
Bhanwari Devi’s complaint of being raped in September 1992. As a
Sathin under the Rajasthan Women’s Development Programme, Bhanwari
Devi was trying to do her duty of preventing child marriage. The upper
caste men who disapproved of her intervention allegedly raped her. In
the trial court Bhanwari Devi stated in 1994 that she was initially
refused medical examination on the ground that a female doctor was not
present. She was examined at the government hospital after 52 hours.
The court decided that the delay in recording the complaint and the
medical examination showed that Bhanwari had concocted her complaint
of rape. Even worse was the casteist tone of the judgment. The court
had expressed doubt about Bhanwari’s complaint on the premise that
upper caste men, including a Brahmin, would not rape a woman of the
lower caste. No wonder they have a statue of Manu, author of the
infamous Dharma Shastra, in the precincts of the Rajasthan High Court.
Veeramani is President, Dravidar Kazhagham