Members from Congress, BSP and NCP in Rajya Sabha today made a strong pitch for reservation in higher judiciary by amending Constitution and sought an all-party on the issue, even as Government insisted it was not considering any proposal to amend the Constitution for such a quota.
At the same time, Law Minister Sadananda V Gowda said that reservation does exist in lower judiciary in at least 19 states.
Replying to a question on whether the ministry has received requests or suggestions favouring reservation for OBCs, SCs, STs, Muslim and women in the judicial services, Gowda said the appointment of judges of Supreme Court and High Courts is made under Articles 124 and 217 of the Constitution which do not provide for any quota for any caste or class of persons.
"The government has, however, requested the Chief Justices of High Courts that while sending proposals for appointment of judges, due consideration be given to suitabale candidates belonging to Other Backward Classes, Scheduled Castes, Scheduled Tribes, Minorities and from amongst women," the minister said.
He also informed the House that his predecessor Ravi Shankar Prasad had written a few letters to all Chief Justices of the High Courts to consider reservation for SCs, STs and other sections.
He said as far as the higher judiciary and higher judicial services are concerned, there were certain differences.
"The appointments of the judicial officers in the states is completely under the domain of the High Courts...There are about 19 states, where there are reservations in the appointment of judicial officers in the lower judiciary.
"But as far as High Courts and Supreme Courts are concerned, these are constitutional posts and are governed by constitutional authorities. There is no such reservation there," he said.
The minister sought to make it clear,"there is no proposal before the government as far as constitutional amendment is concerned" to provide quota in higher judiciary.
Congress member K V P Ramchandra Rao sought to know whether the demand for reservation in judiciary would be considered favourably and if not, then why.
Responding to demands from members for an all-party
meeting to consider the matter, the minister said the suggestion has been "well-taken" and the government will look into it. He, however, refused to give a timeline for the same.
Gowda at the same reminded that "so far as the High Court and Supreme Court judges are concerned, there is practically no reservation as far as any caste or community is concerned. But we are writing repeatedly to the Chief Justices of various High Courts."
He said there were 24 high courts under which quota exist in the appointment of judges in the lower judiciary. Citing the example of Andhra Pradesh, he said that it has 29 per cent reservation for Backward Classes, 15 per cent for SCs and 6 per cent for STs in the lower judiciary.
"It is applicable to the lower judicial services," Gowda said.
Rao, however, argued that framers of the Constitution had never banned or disallowed reservation in the judiciary, a view shared by BSP's Satish Chandra Mishra, who said "there is no prohibition" for quota in High Courts and Supreme Court.
He also expressed disagreement with the minister's contention that the appointment of judges of Supreme Court and High Courts are governed by Articles 124 and 217 of the Constitution which do not provide for any quota for any caste or class of persons.
"Is any prohibition there? You can still make reservation over there under rules...The High Court and Supreme Court are not beyond states. And Article 16 (4) deals with respect to state and its says they can frame reservation for them."
Digvijay Singh (Congress) said since the minister has said the proposal for NJAC was passed unanimously with support of all parties, what was the problem in amending the Constitution now to press for reservation in judiciary.
"The Constitution can be amended. It is the right of Parliament," Singh said.
The minister, however, made it clear "at present there is no proposal before the government as far as Constitutional amendment is concerned.
Replying to the questions raised, Gowda said under
Article 235 of the Constitution, the administrative control over members of district and subordinate judiciary in the states vested with the concerned High Court.
"Further, the respective state government, in consultation with the High Court, frames the rules and regulations regarding the issues of appointment, promotion, reservations etc of judicial officers in the state judicial service. Central government has no direct role in this regard," he said.
The Minister also recalled that recently, upon receiving representations from various sources, Member Secretary of National Commission for Backward Classes (NCBC) requested the government to consider providing 27 per cent reservations for OBCs in lower as well as Higher Judicial Services in the National Capital territory of Delhi.
"Since the matter pertains to state governments of NCT of Delhi, the request has been forwarded to them as well as to the Delhi High Court for taking necessary action," he said.
Replying to supplementaries, the minister rued that unfortunately the government's attempt to set up National Judicial Appointments Commission (NJAC) has got stuck.
"But we have seen the intention of Government. It was a unanimous decision of the Parliament," Gowda said referring to the provision to have SC/ST members in the proposed body.
Declaring that judiciary cannot risk being caught in a "web of indebtedness" towards the government, the Supreme Court had in October last year rejected the NJAC Act and the 99th Constitutional Amendment which sought to give politicians and civil society a final say in appointment of judges to the highest courts.
D Raja (CPI) took objection to the mention of the word "suitable" saying it keeps coming when the issue of appointing people from SC/ST category is brought about.
"Who is a 'suitable' candidate? It is insulting. You say that eligibility/suitability is not there among SC/ST? It is a very insulting word," Raja said.
Reeling out figures to buttress his point about low representation of SCs, STs and OBCs in higher judiciary, Raja asked the minister "how do you justify it".
Hanumantha Rao (Congress) demanded a separate discussion for one hour dedicated to the issue of reservation in judiciary. Majeed Memon (NCP) also backed the demand for quota in the judiciary.
