Narrow caste-ing

The Himachal Pradesh government8217;s move to stall appointments to the Himachal Pradesh High Court, because the names suggested by Chief Justice V.K. Gupta did not reflect the 8220;caste composition8221; of the state, is wholly misguided. The argument is not just prejudiced, it is retrogressive. If given sway, it could severely damage the independence and credibility of the judiciary.

Appointing judges in a country as complex as India has always been a sensitive and important issue for two reasons: the need to maintain the constitutionally prescribed balance between the judiciary, executive and legislature, as well as the imperative to protect the credibility of judicial functioning. But to argue that there must be a sync between the caste profile of a state and the composition of its high court bench presupposes that judges do not have the inclination, or training, to rise above their caste and community identities and affiliations. Judges are required to judge, plain and simple, they are not there to represent their castes. They have to abide by the facts of a case, not the community underpinnings of a case. As a chief justice of the US Supreme Court once observed, 8220;Judges rule on the basis of law, not on the basis of public opinion.8221;

This newspaper has always supported judicial reform. The earlier system which allowed the chief justices of the various high courts and the Supreme Court to exclusively decide who gets to sit on the bench was clearly untenable. The present system of having a collegium of senior judges recommend the names is also not without its flaws. The proposal 8212; which the Union Minister of Law H.R. Bhardwaj spoke of last month 8212; to set up a national judicial commission which would have some representation from the executive may be a step in the right direction. However, this also presupposes that the executive knows its appointed place in the scheme of things; that it does not seek to breach delicate, constitutionally mandated lines of separation between the three estates. It also presupposes that the requirements of law and justice 8212; and not that of politics 8212; will govern judicial appointments. The heat and dust of caste politics should on no account be given entry into the judicial space.