Justice! Yes, I am talking about justice and the Justice! What is justice, ask a jurist or learned scholar and he will give hefty definitions of the simple term “justice = Insaf = Nyaya”. And ask this question to a layman. He will gaze at you: ‘are you mad, you don’t know the meaning of justice?’ will be his first reaction. It is so simple: guilty be punished and innocent be protected. And it be done instantly.

I don’t go by the voluminous definitions and explanations given by the “learned” Jurists. I go by the simple definition of a common man. Now my simple question is: are the judges of High Courts (HC) and the Supreme Court (SC) who are called the Justice, doing justice actually?

While doing my Laws at PU Chandigarh, I always cherished the judgments passed by the then renowned Justices. One judgment said the Article 15 contains a word “only”, it means the Constitution framers had inserted the term “only” with the intention that discrimination shall be caused ONLY if it is done on the basis of caste, race, sex, religion or place of birth. And, hence, no discrimination shall be caused under this Article if a law is made that no female with black complexion shall be appointed as the teacher!! Because “black complexion” is no ground of discrimination.

Wonderful! We the students would exclaim!! Yes, this is the interpretation of the Constitution. Today I feel it is a murder of justice by the Justices. Discrimination is injustice on whatsoever ground it might be done.

Another point that disturbs me a lot, is exemption or protection granted to the judges for the “decisions” (otherwise called judgments) pronounced by them. I quote just three examples:

1. Rajiv Gandhi murder case: The Special Court judge decided that 26 people be hanged for murdering Rajiv Gandhi. In the appeal before the SC, the Justices of the SC decide that only 4 be hanged.
2. Indira Gandhi Murder case: Beant Singh and Satwant Singh, security guards of Indira Gandhi, killed her. Beant Singh was killed on the spot. The Justice of the HC decided that Satwant Singh and his father be hanged but the Justice of SC acquitted and set free the father.
3. Vodafone 600 Crore tax case: The Income Tax Commissioner passed orders that the Vodafone should deposit tax worth Rs. 600 Crore. The Justice at the HC upheld the Orders but the Justice of the SC decided that no tax was payable by the Co.

My humble question: what if the Justices sitting in the SC had been there in the HC and vice versa? Needless to say, the 22 more persons would have been deprived of their lives due to the inefficiency or negligence of the Justice deciding the case initially. Satwant’s father too would have been hanged and Vodafone the innocent, would have had to cough out 600 crores to the exchequer of the Govt of India.
The capability and suitability of the HC Justices who passed such life-threatening decisions were never ever questioned: how could theirs such inefficiency or negligence in evaluating the evidence be tolerated which would have deprived the innocent accused of his most precious asset i.e. life!! Such “dangerous” judges should have been tried for “Attempt to cause death by negligence.” And they should have been thrown out of the Court immediately to safeguard the life of the other innocent accused.

Yes, sometimes all the Justices may be sitting in HC or SC, remarkably agree on pronouncing the same decision. Lucknow Medical College scam case is one such recent example. The CBI claims that Rs. 3 crore exchanged hands for securing a favorable decision from the Justices of the HC and the SC. One retired Justice was arrested acting as “dallā” or middleman. The “Impeachment Motion” against CJI Deepak Mishra refers to this case also.

Sadly a Collegium consisting of such Justices decide and declare that they cannot allow reservation in Judiciary as it will debase “the maintenance of efficiency of administration” of justice as envisaged in Article 335. Needless to say, the pendency of 4 crore cases speaks of their efficiency of administration of justice.

The matter of reservation in the Govt. jobs affects 100% population of India. Like the “War against Terrorism,” every Indian has to be either supporter or opponent of the reservation. Undoubtedly, every Indian has the right to do so. But what irks me the most is the caste-based bias depicted by the Justices who occupy the seat of a Judge with the solemn pledge of dispensing justice “without fear or favour” and protect the Constitution. Let me explain the matter.

The First and foremost rule made by the Justices was that “Reservation” is not a Right but a relaxation. Hence it cannot exceed the 50% level. We the students of Law would jump with wonder! Wow, look at the wisdom of the Justices! They have protected the rights of the meritorious candidates. Thus the duffers can never overshadow the meritorious. Their number shall always remain at 49% or less than that. The meritorious Babus shall always remain in the majority.

The rule made by the Justices in the 1960s continues to roam uninterrupted till today. The castes (BC SC ST) that are eligible for reservation form more than 70% of the Indian population. Out of the rest of the 30% population, at least 10% are Muslims (i.e. excluding those who get a reservation as OBC). And the Govt statistics show they are less than 1% in the top Govt jobs. Thus, in fact, those Justices ensured that 20% of the population grabbed at least 50% of the Govt jobs. It is worth noting that the Justices who imposed the ceiling of 50%, belonged to this minority group of 20%. And they have already decided that no duffer shall have reserved seat in the Higher Judiciary.

But something unexpected happened a few decades after the decision. Some of the duffers showed more merit than the meritorious candidates of the 20% segment. Natural it was that they were adjusted in the merit quota of 20% meritorious people. An uneasy calm prevailed all over. The duffers did not notice it. Then suddenly another bunch of Justices came forward to the rescue of their meritorious people. They ruled: No entry of the duffers in the meritorious category even if they are more meritorious than the 20% general meritorious people.

Now I am not anymore a Law student. So I did not jump with wow because in last four decades I have seen the real face of the people managing the efficient administration of the Judiciary. I have seen the Justice who passed orders from his bungalow that a Dalit CM should prove his majority within next 12 hours and also seen that Mayavati’s case against defection of her party MLAs did not come for hearing for full five years of the Assembly term.

Thus the Super-Rules framed by the Justices put an impregnable & impassable wall against the reserved category population of 70% that they shall not get entry into 50% share of the 20% meritorious people even if they are far more meritorious. Ms. Tina Dabi or Ms. Meghwal or Mr. Shetty will have to carry the tag of reserved category though they surpassed the entire meritorious group thru their intelligence.

Sad it is that even if they have the highest merit, they will be subjected to “the maintenance of efficiency” in administration under Article 335 and perhaps never ever be assigned duties of a Chief Secretary or Home Secretary or like the post. Since independence, such posts have been manned by the persons from the general 20% meritorious category only.

Time and again the various Justices have decided that there cannot be any reservation in promotion. In the normal course, all vacancies in Govt offices are filled by a formula that 1/3 be filled with direct recruitment and 2/3 be filled with thru promotion. I give an example. Supposing the Govt requires 15 DSPs in the police. As per Rule, 5 posts shall be filled by direct recruitment and 10 Inspectors shall be promoted as DSP. In the 5 direct recruitment posts only 2 shall be reserved for SC ST BC but as there is no reservation in promotion, none of the SC ST OBC shall be considered for 10 posts.

Thus only 2 out of 15 shall be appointed from the reserved categories against their share of 7 seats. This roughly means the reservation has been restricted to 12% against 49.5%. And who knows no “suitable candidate” might be found for 2 posts also!! In practical terms, 88% reservation has been ensured for the meritorious general category population of 20%. What else should be called injustice? Sadly this is being done by the persons called “Justice”!!

Then there is the Rule that once an SC-ST employee becomes an “officer” there shall not be any reservation for him for the next higher grade. For example, there are 7 grades in the banks: Assistant Manager, Dy Manager, Manager, Chief Manager, AGM, GM, CGM/MD. Once an SC-ST candidate joins as Asstt Manager,(thru promotion or direct recruitment) there is no reservation for him for next grade. The end result is that during my 20+ years service in Bank, I have not seen even a single person from SC ST working as GM in the Bank.

Another Justice decided that there should be a creamy layer in SC ST reservation like as it is there for the OBCs whereby any OBC having the family income of more than Rs. 5 lac is not eligible for reservation. If a creamy layer criterion is applied for SC ST reservation also, the income ceiling has to be less than the OBC’s. Say it is fixed at Rs. 3 lac.

Practically it shall mean that an entire lot of SC ST employees shall be excluded from the purview of reservation as no employee gets salary less than Rs. 25000- per month. Thus almost all educated SC-STs shall be alienated from the Dalit movement as Reservation is the core matter which binds the SC-STs together. The educated people (employees) are leading/guiding the SC-ST group. They are the lifeline. If the criteria of the creamy layer are implemented the Dalit movement shall become devoid of the “leader from among the masses”. The BAMCEF like organizations shall come to naught. Thus the idea of creamy layer will prove to be another nail in the coffin of reservation and thus to the survival of the Dalits.
Yes, the Dalits in top services, say drawing the salary of Rs. 1 lac or more per month should, on their own, decide to make their wards compete in the meritorious quota of 50.5%. Somewhere in the core of my heart, a fear looms: soon there shall emerge another Justice who will pronounce that a person born in SC ST BC family shall not be eligible to apply for general meritorious seats and vice versa.

It is very much possible. Because if despite a unanimous law passed by the Representatives elected by 120 crore citizens of India, a Justice can pronounce that an offender under Atrocity Act shall not be arrested until and unless a Police Officer of SP rank, after inquiry, permits to do so, another bench may interpret that Article 16(4) read with Article 335 means the interests of the reserved as well as meritorious castes should be protected equally. Thus a balance has to be maintained. Thus 50.5% seats be kept aloof for meritorious category (castes) and 49.5% be “reserved” for the duffers. And “Reserved” means reserved for 3 years i.e. if a suitable candidate from the duffer category is not available, the seat shall be filled by the meritorious category person.

In nutshell my advice to the duffers is that they should prepare themselves for another movement of freedom; for a free society, a society where everyone would say “God lives in the Panch” i.e. Justice. And it is not possible until and unless the reservation is implemented in the Judiciary up to the top level.

Author – Kuldip Kumar

[irp]