In constitutional governance, independent judiciary is one the important pillars of democracy. A country like India with so much of diversity and inequalities needs an inclusive judiciary that represents social diversity in our courts. It has been observed that since sixty eight years of independence, the higher judiciary, Supreme Court and High Courts and other related judicial bodies remain largely under represented by SCs, STs, OBCs, minority and women.
In the last parliament debate over national judicial appointments commissioner to replace the collegiums system in appointment of judges, many members cutting across party line had expressed their views over the issues of representation. They demanded an inclusive judiciary that represents the social diversity and specially addresses the non representation of about 85 per cent of people of the country in higher judiciary.
It is argued that there has been no judge from backward classes and SC, ST, minority and women just have very insignificant representation among judges of the Supreme Court and very inadequate in High Courts of the country. It is further said a majority of the judges form about ten per cent of dominant social groups who have been managing higher judiciary. The Supreme Court as the apex court of the country has the power to interpret the constitution.
Over its 63 years of existence, the Supreme Court has had only five women judges with two sitting judge, Justice Gyanasudha Mishra and Justice Ranjana P Desai. In 1989 justice Fathima Beevi was appointed as the first woman judge. There are 58 women judges out of 609 judges in different High Courts and there are no women judges in six High Courts. Justice KG Balakrishana of Dalit community was the first Chief Justice of Supreme Court of India in 2007.
While SCs and STs have been under represented in judiciary but they remain neglected in judicial process because of their poor economic status. They face social discrimination while dealing with judicial process which is a matter of concern in the context of constitutional mandate envisaged in the preamble of our constitution to build India a sovereign, socialist, secular, democratic republic and to ensure justice to all its citizens. It is the moral and legal duty of the State to ensure adequate representation of people from different sections of our society and make them proper and fit for the judicial service.
The National Commission for Scheduled Castes report on reservation in judiciary reveals about the victimization of people from SC and ST in judiciary and the apathy of judiciary to the cause of SCs and STs.
The National Crime Record Bureau (NCRB) on prisoner statistics in India for the year 2013 says the percentage of inmates from three minority communities i.e. Dalit, Adivasi and Muslims is disproportionately higher than their total population. They constitute more than half of the prison population of the country.
While SCs and STs constitute 25.2 per cent of Indian population as per census 2011 but their proportion is 33.2 per cent as prisoners in Indian jails. The trend is almost similar in case of all types of prisoners that includes convicts, under trials and detainees. The Muslims though about 13 per cent of the total population but they constitute 20 per cent of the jail population.
There are thousands of cases of atrocities against SCs and STs booked under SCs and STs (Prevention of Atrocities) Act, 1989 pending in different courts of the country. The poor and illiterate victims are suffering in the delayed judicial process to access justice. National Crime Record Bureau data for 2013 says there are 39,408 atrocity cases against SCs and 6,793 cases against STs reported in different parts of the country and there are above one lakh cases pending for trial at different courts of the country.
The number of crime, violence and atrocity against vulnerable poor and illiterate women, Dalit, Adivasies and minorities has been increasing which needs urgent judicial intervention to strengthen criminal justice administration and in that context the secular character of judiciary should be visible in its composition itself. The modern State has emerged as protector of minority from domination and exclusion of dominant groups. A strong judiciary can help in building an effective accountable executive and responsible legislative in making new legislation based on interpretations of the court.
With the formation of separate State of Odisha and demand for independent high court, Odisha High Court was formally inaugurated in 1948. With 67 years of its existence, the representation of SC, ST and OBC as Judges is very minimal though they constitute a majority of the State population. The court Bars are also having inadequate lawyers from SC and ST communities in proportion to their population in the State. language has been a major barrier to express in courts as English has been continuing as language of court. There has been no use of Odia language in courts but in certain States Hindi and recently Tamil are used in High Courts. The use of mother tough as language of administration and justice will make people closer to justice. In Odisha with huge poor and having larger presence of SC and ST population, the judiciary has very vital role in protecting the constitutional safeguard for the poor and marginalized. But unfortunately a vast majority of people of the state are illiterate, poor and also unaware about laws with very minimum legal awareness.
They have been routinely exploited in many ways to access justice. The legal aid facilities for poor, SC, ST, people with disabilities, minority and women are largely dysfunctional. The basic minimum human rights and entitlements guaranteed under constitution have been remaining out of reach of the common people. In this context judicial activism has been playing an effective role in protecting the interest of the poor and marginalized as it is the spirit of law in jurisprudence to defend the weak and poor from exploitation and any form of injustice.
A study on women prisoners by State Commission for Women Odisha revealed that about 63 per cent women in prison belong to SC, ST and OBC communities. A majority of women prisoners are economically poor, mostly asset less, under BPl, agricultural labourers and wage earners.
They lack financial support and family backing for movement of their cases in the absence of legal aid by State which is very minimally reached to the women inmates badly in need of legal aid.
Articles 35A speaks about equal justice and free legal aid and there is legal Service Authorities Act, 1987 to provide free and competent legal service to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizens by reason of economic and other disability. The provision of legal aid has been followed by most of the major countries in the world including USA, Canada, Australia, Europe, Denmark, Germany, Italy etc.
The countries such as USA and South Africa have made arrangements to ensure the participation of black and women to build an inclusive judiciary that ensure the bench adequately reflects a society of equals.
The Government of Kerala has advocate grant for young lawyers from among SC and ST communities with financial assistance to set up practice as advocates. Though reservation is not the only solution to make judiciary inclusive but it is one of the most important tools to bring change in the composition of social character in judiciary and along with reservation in higher judiciary which is just a tool there should be opportunities of legal education for the poor and socially marginalized. The most important area is to build a discrimination free environment in our judiciary that exhibits the spirit of social equality, dignity and brotherhood towards fellow men and women in judicial fraternity. The court should uphold the principles of social justice by defending the affirmative action for the marginalized and pave the way for its implementation in higher judiciary also.
(The writer is a researcher and rights activist, who can be mailed at manasbbsr15@gmail.com)