January 23, 2017 12:36:29 am
To be a successful professional, one needs intelligence and knowledge. But in some professions like medicine, police and, specially the judiciary, an additional attribute is necessary — “social sensitivity”. This sensitivity is essentially a societal construct, which is imbibed by a person on the basis of class and caste hierarchies. The social sensitivity attribute is so necessary in judicial pronouncements that, in its absence, it may lead to grotesque consequences.
In Tamil Nadu, the bastion of the social justice movement, which also saw a strong peasant movement under the leadership of communists, on Christmas Day in 1968, 44 Dalits were burnt alive in a small village of Kilvenmani in Thanjavur district. Subsequently, 23 landlords were arrested, but 15 of them were acquitted and the rest were given liberal imprisonment by the district court. The case went in to appeal in the Madras High Court, where not only were all the accused acquitted, the court also observed that “the rich landlords could not be expected to commit such violent crimes and would normally hire others to do it while keeping themselves in the background”. Incidentally, the DMK had come to power in then Madras, dislodging the Congress party.
In contrast, after the Bara massacre of February 1992, where 35 upper caste landowners were killed by the MCC (Maoist Communist Centre), the then Lalu Prasad government in Bihar had to invoke TADA. In 2001, the special TADA court and the district and session court awarded the death sentence to several of the accused — upheld later by the higher courts, although the Supreme Court converted some death sentences to life imprisonment. The difference in the trajectories of the two cases would appear to confirm suspicions that the spirit of the infamous Manu Code, which prescribed different punishments for different castes for the same crime, still prevails.
The decision of the Bihar cabinet to grant “50 per cent reservation in subordinate and superior judicial services for direct appointment after due consultation with the Patna High Court and Bihar Public Service Commission” is a much delayed corrective step. This stand of the Bihar government is not of recent origin. It could take this decision after a protracted legal battle of almost two decades. The final nod came in the light of a Supreme Court judgment of September 29, 2016, in the state of Bihar vs Dayanand Singh case. The judgment resulted in reservations for superior posts like district and additional judge. For subordinate services like judicial magistrate and munsif magistrate, a reservation policy for 27 per cent of the posts was already in operation. Within the new policy of 50 per cent reservation across the board for both the segments, 21 per cent is for EBCs, 12 per cent for OBCs, 16 per cent for SCs, and 1 per cent for STs. Over and above this, a vertical reservation of 35 per cent for women and 1 per cent for differently-abled persons was also provided.
While this new reservation policy of the Bihar government has been applauded by socially sensitive persons, it has also attracted stringent criticism from several quarters. Reservations in the judiciary, it is being said, will not only disturb the level playing field, it is also a step guided by “vote bank” politics. These critics are not able to appreciate that reservations for the marginalised in a sensitive area like the judiciary will indeed ensure a more socially sensitive justice.
Even in the US, with a developed economy and a functioning state, African-Americans are subjected to “legal lynching” on a regular basis. According to the Pew Research Centre in 2013, “blacks faced unfair treatment in dealing with police or in the courts”. And African-Americans perceived more racial biases in the criminal justice system than in any other institution. If the Hispanic, Latino and other minority groups in the US do not feel that the judiciary is inclusive, it cannot boast of having a strong democratic foundation in the state.
In India, a sense of judicial inclusion is even more necessary. The edifice of the judiciary, if it functions well, gives legitimacy to the state system. Till recently, in many states in India, if individuals belonging to the subaltern groups were denied justice in the lower courts, they would not venture to go to the higher echelons of the judiciary, fearing an insensitive court. My late mother, who was a lawyer in the Patna High Court, would often narrate her experiences of the day in court over dinner. Some judges of upper caste background, she would say, otherwise wise and enlightened, would invariably deny bail to an appellate if he or she was Dalit. This treatment was especially reserved for Dusadhs. Historically, the Dusadhs were considered to be a criminal caste and treated as legal pariahs. They were often enlisted by the provincial feudal lords either as musclemen or as local gangsters. A comparison of the trajectory of court judgments by the lower and higher courts would show that the lower courts have displayed more sensitivity, whatever may have been the quantum of sentences against the oppressing castes.
The efforts of the Bihar government since 2005 to re-establish the authority of the state have suffered when many death sentence to many convicts in the lower courts was reversed in the higher court. It is high time that the nation also revisits the recruitment pattern of high court judges. The constitution should not be invoked to shield them from scrutiny.
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