The recent of four judges to the Jharkhand High Court continues the trend of exclusion of women and minorities for the post of High Court judges in the state.
Since the formation of a separate State in 2000, only two judges from the Adivasi community have been appointed to the High Court. Justice Lakshman Uraon (now retired), elevated in the year 2002 and Justice Ratnaker Bhengra, elevated in the year 2015 are the only two judges from the Scheduled Tribe community to preside as judges of the High Court. Only five women have presided as High Court judges in Jharkhand, according to the High Court’s official website.
Muslim representation in the State is barely existent, as only two Muslim judges have presided on the bench since the State’s creation. The State’s population as per the 2011 census is 3.3 crores, out of which the Scheduled Castes (SC) form 12.08%, Muslims form 14.53% and Scheduled Tribes (ST) form 26.21% of the population. However, their representation on the bench continues to be abysmally low.
India’s unique method of the Collegium system that recommends High Court judges is often criticized for its opacity and elitism. The appointment is based on the names recommended first by the High Court Collegium, then sent to the state government, the Union government and then cleared by the Supreme Court Collegium headed by the Chief Justice of India. Once the government approves the final recommendation made by the Supreme Court Collegium, the appointment is made. The names recommended can be either from the Bar or from the judiciary. The latest recommendations for elevation are all from the subordinate judiciary. The fate of the disadvantaged is left in the hands of a few privileged.
Jharkhand was carved out from Bihar after a long demand of having a separate State based on ethnicity and to safeguard the interests of the tribal population. The Jharkhand High Court continues to hear cases on the importance of forest and dwelling rights of the tribal people without having any experience or background about their culture. In a State that frequently witnesses tribal displacement, where young Adivasi men are arrested and killed in fake encounters for protesting, it’s a matter of concern that till date only two Adivasi judges have been elevated to the High Court.
Similarly, in the case of gender representation, the numbers demand a thorough self-reflection. At present, there is only one female sitting judge out of 19 judges at the Jharkhand High Court. While the country celebrated the elevation of three women judges to the Supreme Court, states like Jharkhand continue to suffer from inadequate representation on the bench.
The underrepresentation of religious minorities is perhaps equally worrying. For the past 15 years, there has been no elevation of a Muslim judge. Justice MY Eqbal was appointed as a High Court judge in the year 2000 (retired as a Supreme Court judge) while Justice Altamas Kabir was appointed as the Chief Justice of Jharkhand High Court in the year 2005 (retired as the Chief Justice of India). Since then, the bench has not seen a Muslim High Court judge.
The low representation demands positive action as there have been sufficient examples to show us that often, judges' backgrounds influence their opinion on the bench and outside. In the oft-cited example of State of Karnataka v. Irappa, the Karnataka High Court acquitted a hotel proprietor accused of keeping separate cups and saucers for Dalits, on the grounds of a 12-hour delay in filing the complaint and that the complaint did not specifically mention that the accused had kept the utensils separately. A couple of years ago, Justice V Chitambaresh of the Kerala High Court drew for his remarks glorifying Brahmins.
Justice VR Krishna Iyer wrote in his book,
“I remember one Chief Justice telling me long ago that he owed his position to his caste and so would, gratefully, help his caste.”
Sometimes this bias can be unconscious, and a diversified judiciary can help to sensitise the system on caste, religion and gender.
To be sure, including minority judges does not guarantee pro-minority judgments either. A woman judge can still be patriarchal. There have been instances where male, Hindu upper caste judges have stood for minority rights. The best example is Justice Iyer, whose background did not influence his decisions.
The goal of having a diverse judiciary is to dismantle a system where a small privileged group makes powerful decisions for a marginalised group without understanding their conditions. In arguing for gender diversity in the courts, researchers Uday Shankar and Srichetha Chowdhury write that public confidence in the judiciary stems from a diversified judicial system. Just like the presence of women sensitizes the judicial system and curbs stereotyping of women by male colleagues, the presence of other minorities brings caste and religious sensitivity to the bench. It further creates a domino effect of more people from minority backgrounds aspiring to join the Bar and the Bench.
In conclusion, the dire underrepresentation of minorities in Jharkhand's higher judiciary raises urgent questions. We must bypass the easy excuse that we don’t have qualified judges coming from these groups. We must deepen our understanding, and adopt self-reflection and positive action to ensure that the marginalised are equally represented at all levels of power.
Shailesh Poddar is a lawyer practising in Ranchi, Jharkhand.
Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the views of Bar & Bench.