RAM MANOHAR LOHIA speaking in a public meeting in Hyderabad on July 17, 1959, asked the audience as part of his speech, “Who are the judges and police officers, which caste do they belong to, and whom do they support?.”He noted, “Never assume that judges and magistrates only dispense justice. This is wrong. The one who sits on the judge’s chair is, after all, also a human being. Some things remain stuck in his mind like ‘What is society? ‘What is justice?’, ‘What should the structure be like?’. If there is an upper caste judge then, leave one out of hundred, there will be ninety nine such people [who would say that if]...the land documents are in his name, it is therefore his property, [and] hence, it should be his. Then he will not see anything else. He will understand that ‘[This] is justice, give it to him’. He will not look at things like where they live, whether they have toilet facilities or not, whether they can live like humans or not, because those old things are [still] stuck in his mind. This will continue as long as police station officers, magistrates and judges belong to upper castes only.” Lohia was not called up for contempt in any court for his public speech. However, just two years before E.V.Ramasami (‘EVR’), popularly called Periyar in Tamil Nadu, known for his fight for social reforms and attack against caste system, was hauled up for contempt by the Madras High Court. In a judgement passed by the Madras HC in a writ petition (W.P.No. 568/1955), the High Court had passed strictures against the District Collector Malaiappan. While speaking in a public meeting, EVR noted that the critical comments made by the Judge Rajagopala Iyengar against the non-Brahmin District Collector was highly unwarranted and asked, ‘Would the judge have made similar comments if the District Collector was a Brahmin Officer?’. In April 1957, in the contempt, EVR made a detailed statement justifying his comments and also stated once again that the judges are not free from caste bias. .“Never assume that judges and magistrates only dispense justice. This is wrong. The one who sits on the judge’s chair is, after all, also a human being.”.In his defense statement, he even quoted a judgment of the Madras High Court in which it had criticised a sub-judge, naming his community and his utter disregard for legal consideration: -“This is an audacious attempt by a Brahmin Judge to invent a new rule, namely that a daughter who is unchaste is under the same rule of exclusion as a widow and can’t inherit her father’s or mother’s estates…’ The reason why that learned Judge seems to have stretched the law was that while apparently he was prepared to admit that ordinary unchastity might not be fatal, cohabitation with a Mohammedan was such an aggravated form of unchastity that different considerations should apply’”. (51 MLJ 387) The then Government of Madras presidency was adopting an order distributing the government jobs on caste and religious basis since the 1920s. By that the roster was adopted and specific reservations were made for Brahmins, Non-Brahmins, Harijans, Indian Christians, and Muslims. After the introduction of the Constitution in 1950, the Communal Government Order (‘CGO’) was challenged and struck down by the Supreme Court in 1951. Therefore, it was common to attribute caste motives in their decision-making on the part of persons holding high offices. The early 1920s: In Madras, an emerging assertion for non-Brahmin judgesThe demand for appointment to the High Courts on communal lines is almost a century old. In 1921, a full bench of the Madras High Court headed by Justice Coutts Trotter issued contempt to one Raghava Reddi who was a practicing lawyer. Contempt proceedings were initiated because he filed an application for transfer of a case to another court. He alleged that his suit was before a Brahmin judge and the Trust for which he was seeking the relief was also dominated by Brahmins. The local Brahmin legal practitioners were taking active interest in the suit and hence he may not get justice before a Brahmin judge. .Top upper caste judges in India ‘biased’ against Dalit colleagues: US Bar Association report.The then Advocate General, C.P.Ramasamy Aiyar, issued a notice to Raghava Reddi who filed a reply which went thus:“That a test case like the said suit should not be heard by a Brahmana Judge who will naturally be inclined towards the Brahmana institution; the petitioner understands and believes the same to be true that the Brahmana educated classes, subject to some honourable exceptions, usually try to lower the work of the non-Brahmana educated classes in the eyes of the people….’He further sought that the suit should be heard by “a Judge who does not labour under any bias in the matter and who is not a Brahmana”. Thus, in his understanding, the Brahmin could not transcend caste and be dispassionate.”A full bench of the Madras High Court rejected the plea and debarred him from doing legal practice for six months. It observed:“It is lamentable that racial and communal animosity so much prevalent in this country should invade even the Courts of Justice and it is more lamentable still that a member of the profession with a duty to his clients should have behaved in a manner, which would not conduce to maintain the dignity of Court””(Source: M.S.S.Pandian, “Brahmin and Non-Brahmin” published by Permanent Black, 2007).“Since judges of the Madras High Court has the power to appoint district munsiffs and since these judges were invariably brahmins, in several instances they had appointed men of their own caste as district munsiffs”.Later, in early 1920s, the demand for a non-brahmin judge to hear the case later led to a demand for non-Brahmin lawyers to be made as High Court judges. It was during that time the first Communal Government Order (September 1921) was passed by the then Madras government giving caste based quotas in public employment. Two well-known authors on the rationalist movement wrote:“the desire to ‘non-brahminize’ the services in Madras possessed a double history: on one hand, it was impelled by British desire to hold brahmin administrative dominance in check (Irschick 1969, 218-20)… educated non-brahmins who felt it wrong that they were represented in so miniscule a fashion in provincial administration…. they carried their concerns into the newly formed Justice party, were they came to be inscribed at the heart of the Non-Brahmin Manifesto….. Since judges of the Madras High Court has the power to appoint district munsiffs and since these judges were invariably brahmins, in several instances they had appointed men of their own caste as district munsiffs…. In this context Justices demanded that the power to nominate district munsiffs be taken away from the Madras High Court, or that the court insist that judges heed the principle of ‘due representation to all communities’ in making appointments” (Source: V.Geetha and V.Rajadurai, “Towards a Non-Brahmin Millennium”, published by Samya, 1999) The Chandra Reddy saga in the 1960sIn 1964, P.Chandra Reddy, the Chief Justice of Andhra High Court was transferred to the Madras High Court all of a sudden. The circumstances under which he was transferred was well explained by Justice Gajendragadkar (former Judge of the Supreme Court) in his biography “To the Best of My Memory”. It transpires that Justice Chandra Reddy was showing favouritism to his own community people which led to several petitions being received by the Supreme Court. There were no guidelines prescribed in the Constitution as to how to deal with a sitting judge in such a contingency. Justice Gajendragadkar being a senior most judge was sent to Hyderabad to inquire into those complaints even though modalities such as the in-house inquiry process had not yet evolved. Justice Gajendragadkar sent for the Chief Justice to his guest house and after explaining the circumstances of his visit, told him to give the names of a few advocates whom he had faith in regarding their objectivity and honesty. Later, Gajendragadkar sent for those advocates and inquired them about the allegations against Justice Reddy. It so transpires that all the advocates who met Gajendragadkar confirmed the truthness of the caste biased allegations made against Justice Reddy which was later informed to the then Chief Justice of India. .“Caste, the most important differentiator in Indian social life, is a better indicator of social origin and class than parental occupation. Seventy-seven of the ninety-three judges were Hindus,” writes George Gadbois.The Supreme Court takes note of diversity in judicial appointmentsExcept for the procedure for removing a judge contemplated under Article 217 read with Article 124 of the Constitution, the Supreme Court resorted to the transfer method provided under Article 222 and transferred Chandra Reddy to Madras High Court and he became a Chief Justice and after the sudden vacancy in the post of Governor, he also was appointed as the Acting Governor of Tamil Nadu. The allegations of caste bias of individual judges slowly led to change in the stand of the organized Bar. In 2014, the Madras High Court Advocates Association expressed reservation on the twelve names sent by the High Court collegium on the basis that it had no diversity and people belonging to one community alone were packed in the list. Based on the protest, the Supreme Court collegium withdrew the twelve names sent by the High Court which was earlier recommended by them for appointment of judges of the High Court..Role of a judge: When to recuse? .In the meantime, when the Madras High Court filed an appeal against the stay granted by a division bench on the consideration of those names, the Supreme Court while disposing of the appeal and taking exception to the Madras High Court order pointed out that a litigation on the proposed names may not be maintainable. Yet it was observed: -“The wisdom and legal learning of a particular individual coming from a particular social background may have leanings and individual judges are not un- afflicted by their notions of social, economic and political philosophy, but such matters fall within the realm of suitability to be considered by the collegium making recommendations or accepting the same for appointment as a Judge. The issue of a broad representation has also to be looked into from the point of view that it is necessary to ensure that a more representative Bench does not become a less able Bench.”The Supreme Court further gave an advice on the method of appointment as under: -“Appointments cannot be exclusively made from any isolated group nor should it be pre-dominated 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.” (2014 (11) SCC 547).Justice Krishna Iyer’s campaign for inclusivity that led to a contempt petitionProfiling the judges of the Supreme Court from 1950-1989, George H.Gadbois Jr. wrote:“Caste, the most important differentiator in Indian social life, is a better indicator of social origin and class than parental occupation. Seventy-seven of the ninety-three judges were Hindus. The most striking thing about these tables is that Brahmins, on-nineteenth of the nation’s population, held thirty-three of the judgeships.…….”..(Source: George H Gadbois, JR, Judges of the Supreme Court of India 1950-1989, Published Oxford, 2011) Justice V.R.Krishna Iyer pleading for appointment of dalits in the higher judiciary wrote letters to the successive Prime Ministers. A letter dated 24.11.1991 found the following response from the then Law Minister (K.Vijaya Bhaskara Reddy) :“my predecessors had addressed letters in August ’80, May ’84, March ’86 and March’90 to Chief Ministers and Governors of the States and Chief Justices of the High Courts requesting them to locate persons from the Bar belonging to Schedule Castes, Scheduled Tribes, minorities and other Backward Classes who are suitable for appointment as Judges of the High Courts so as to give them better representation on the High Court Benches than that which obtains at present. Moreover, while asking for recommendations from Chief Ministers and Chief Justices of the High Courts to fill up vacancies in the courts, attention is invariably drawn to this aspect so that they keep it in mind while sending recommendations.” Justice Krishna Iyer once again wrote to the Prime Minister on August 6, 1992: “For a long time I have been feeling that the SC / ST categories are not being given a fair deal in the Judiciary. The Judges, especially of the High Courts and the Supreme Court, wield considerable power and it is but legitimate for the SC / ST members to have their place in these seats of justice. When pressed they may plead and alibi of merit although, I totally disagree with the plea as often it is disingenuous mask for prejudice” Justice Iyer also carried his campaign to the public sphere. Once, while addressing a meeting, a speech got him into trouble. He had said that the lowest of the lowlies in Kerala — the ‘Nayadi’ tribals — should be appointed as High Court judges and heads of administration. Krishna Iyer said that if a “Nayadi” was appointed as a judge of the High Court, he would not be second to any of the judges of the High Court in ability and aptitude. He asked if it would not be possible for a “Nayadi” to become an expert in law. His call for social justice was interpreted as undermining the judiciary and slighting the High Court..Judicial diversity in India: exploring the ‘unwritten’ criteria of gender, religion, caste and regionality in appointments to the Supreme Court.A few days after this incident, on September 19, 1990, an advocate of the High Court, Raju K. Mathew submitted a petition to the Advocate-General of Kerala, Mr. Sudhakaran, seeking permission to file action against Krishna Iyer and the editor and publisher of the Malayalam daily Express Balakrishnan, on the same ground for contempt under the Contempt of Courts Act, 1971.Justice Krishna Iyer in his reply to the High Court Bar wrote:“My firm faith in social egalitarianism leads me to the view that the Dalits, the humblest layer of the Indian humanity (“Nayadis” included) given stimulating opportunity and catalyzing environment will be equal to any incumbent in our administrative or judicial series. It is a prejudiced condemnation of “Nayadis” to deem them unfit. given fertile circumstances, to be Judges even of the High Court and of the Supreme Court, cannot Nayadis become learned law lords and do justice. ….. The implication in the “resolution” of the Bar Association is that the High Court is so high and the Panchama proletarians so law that they can never be thought of for judgeship and even to mention it as a possibility on equal terms is depreciation of the High Court.”Justice Iyer continued:“The truth is that I am all for “Nayadis” and their uplift in status and educational and public service opportunity, to such an extent that they may sit on the pedestal of high judicial office with no less distinction as those now on the Bench. They may lend social lustre to the institution and not stigma to the Bench. Please recall Dr.Ambedkar’s statement : “The Hindus wanted the Vedas, and they sent for Veda Vyasa who was not a caste Hindu. The Hindus wanted an epic, and they sent for Valmiki who was an untouchable. The Hindus wanted a constitution and they sent for me” After his reply, the Advocate General of Kerala declined to grant consent to proceed with the contempt petition.(Source: P.Krishnaswamy, “V.R.Krishna Iyer A Living Legend”, Universal Law Publishing Co.Pvt. Ltd, 2000) .The caste feelings of judges who adorn the benches in higher judiciary were never hidden..Caste feelings in the higher judiciary remainIt was in this context that the Report of the Parliamentary Standing Committee (2023) and the particular finding given below assumes importance: - “As per the data provided by the Government on the social status of the Judges of the High Courts and otherwise also, it can be seen that our higher judiciary suffers from a 'diversity deficit'. The representation of SCs, STs, OBCs, Women, and Minorities in the higher judiciary is far below the desired levels and does not reflect the social diversity of the country. In recent years there has been a declining trend in representation from all the marginalized sections of Indian society.”The caste feelings of judges who adorn the benches in higher judiciary were never hidden. When two judges, one from Madras High Court and the other one from Kerala High Court went and attended the world Tamil Brahmin Conference held at Thiruvananthapuram and also spoke about the virtues of the community, they were severely criticised in the press. One of the judges who attended the conference later delivered a judgment in the Madras High Court strongly defending the Sanatana dharma and also exhibited her knowledge about the caste system and wrote “that the period of origin of caste system is just a century old, however, the origins of the caste system as we know it today are less than a century old. The state of TN has 370 registered castes and the state is a cacophony of pulls and pressures by groups of persons claiming allegiance to one caste or the other.”Later when there was severe public criticism, she modified her order stating: “This court agrees unequivocally that there are inequities based on caste, present in society today and that they are to be eschewed. However, the categorisation of castes as we know them today, is a far more recent and modern phenomenon.” (Source: The New Indian Express dt. 10.3.2024) It was in this context that one has to understand the recent controversies arising out of a threatened contempt action against one Advocate Vanchinathan by a bench headed by Justice G.R. Swaminathan. Apparently, the lawyer had sent a petition to the Chief Justice of India alleging several instances of caste bias and misbehaviour by the Judge. Somehow the petition was leaked in social media and went in circulation. The judge called up the lawyer and questioned him in the open court about his allegations of caste bias made against him. When the lawyer asked for a written notice, the Judge made all kinds of comments on the lawyer. .Why we need a nuanced reading of Dr Ambedkar’s position on judicial appointments.Later, a few retired judges of the High Court made a written appeal that any petition addressed to the Chief Justice of India containing allegations of misbehaviour of a sitting judge, has to be heard only by the Chief Justice of India through an in-house inquiry and that Justice G.R. Swaminathan could not forestall such an inquiry by threatening to issue a contempt and hear the matter by himself. Though Justice Swaminathan stated that he was not a fool to receive any such advice from the retired judges, good sense prevailed and the matter has been forwarded to the Chief Justice of the Madras High Court for further action. This only reminds us that the members of the higher judiciary are not completely immune from functioning with their caste origin and remedy can only be a greater diversity being created in the matter of appointments to higher judiciary.
