Prashant Bhushan is a truly remarkable person, someone many of us admire and respect for his sense of justice and dedication towards constitutional rights and democracy at large. Unfortunately, his position on reservation in the higher judiciary is problematic and needs to be addressed. In the midst of his regrettable prosecution for contempt of court, he said in an interview to the National Herald last month, and I quote,
“I’m not particularly in favour of reservations in the higher judiciary. I am certainly of the view all the relevant qualities in a judge need to be considered, including their sensitivity to caste discrimination, sexual discrimination in our society. Even to protect those very people you want to protect by reservation, it’s not necessary to have Dalit judges. If they are deserving, they would come through the normal course too. Higher judiciary is meant to protect the Constitution and rights. Therefore, it’s a place where you need the most appropriate people who can do the job with sensitivity. It’s not necessary that only a Dalit judge will be sensitive to Dalit issues. Justice Krishna Iyer was much more sensitive than Justice K.G. Balakrishnan.”
Even before I go into this debate, it is important that I reflect on my own tentativeness in addressing this issue, though I wanted to do so as soon as I saw the interview. I believe that it was my own caste privilege and a hidden sense of liberal loyalty that stopped me. Is the timing right, I wondered? I explained away my hesitation as respect to the individual and his living legacy. How much of these words are attached to our respective positions in social hierarchy, I do not know, but I am certain that somewhere below lurks the ugly notion of ‘common cause’. When someone like Prashant Bhushan argues against reservation in the higher judiciary, liberals who disagree must stand up. Otherwise there is no difference between the parochial mob and us. I failed.
The gruesome rape and murder of a Dalit woman in Hathras and the inhuman behaviour and connivance of the police and state government in the attempted cover up demonstrates that no institution is devoid of casteism; that casteism is rampant. The violence we witnessed and continue to see is the cumulative of the normalisation of various discriminative practices in every one of these institutions. This is not the first time that we are witness to such barbaric community and institutional behaviour; unfortunately this may not be the last. If anything, it points to a truth: power remaining in the control of just a few groups of people negates or acutely limits the extent of fairness. For anyone to believe that somehow the higher judiciary is above this reality is either naïveté or unrecognised caste-blindness.
The argument that it is the quality of the individual that matters, and not the caste, is flawed and myopic. Will not a woman in the higher judiciary give the bench an important perspective? The most decent man is still not a woman, and hence would have never experienced misogyny and patriarchy. This still does not necessarily mean that the woman will be less patriarchal, but it will certainly enable a conversation that is normally beyond the grasp of a man. A male Supreme Court judge needs to continuously learn about sexuality and gender, and the presence of women and trans people as colleagues will make the institution that gives meaning to the Constitution far more embracing and progressive. When it is truly representative of the people, it allows for the contestation of views. Greater representation leads to a balance in the power of the collective voice, empowering judges from marginalised communities to be more forceful in expressing their opinion.
It disturbs me that many upper-caste liberals who would make the above argument for women do not do so for minorities, Dalits and Adivasis. Let us also not forget that when we have more women on the bench, it allows many more girls to dream of that possibility. If we had many more Supreme Court Judges who are Dalits or Adivasis, the imagination of young people from those communities about what is possible expands. As a society, when we provide an environment that enables the marginalised to dream for the highest offices, equality blossoms.
Even a judge with an impeccable record, who believes that he is dispassionate, can see things based only on his life experience. Hence the more socially privileged he is, the more limited his life experience. Therefore it is necessary that, in a democracy, we have people with different life experiences as part of the higher judiciary. The system must structurally compensate for social blinders. In Indian society, the trajectory of an individual is inextricably connected to his or her caste. Hence for Prashant Bhushan to imply that the caste of a judge is irrelevant is erroneous.
Let us also not forget that the entire selection process is entrenched in patriarchy and casteism. A collegium that is filled with upper-caste men will primarily select their own kind. Prashant Bhushan’s argument that the deserving will come through the normal course — that they will find their way to the Supreme Court if they are good enough — is dangerously close to the commonly held upper-caste argument of merit. It is no different from people with caste privilege saying that Dalits who are really talented will make it to the elite colleges; that they need no reservation.
What is this idea of ‘deserving’? Are we to just accept that judges, unlike all other human beings, are bias-less? We have to understand that words like ‘merit’ and ‘deserving’ are smokescreens that enable the powerful to keep control and maintain status quo. Only affirmative action can counter-balance the coloured lenses of our esteemed judges. We cannot make individual choices about when affirmation is less or more important. Such arbitrariness in thought only marks our discriminative nature. There will always be good judges and bad judges but we cannot have judges who are more or less social clones.
But, as others have pointed out, at the foundation of this lies the opaque collegium system. It functions under the whims and fancies of a select few, where caste and gender considerations are often arbitrary. Decisions are taken behind closed doors and unlike other state action, is not amenable to the demands of public transparency. Admittedly, affirmative action cannot be implemented under these conditions. Reservation in the higher judiciary will be transformational only if dovetailed with a transparent selection process; otherwise there is every chance that it might only entrench existing barriers.
What was also hurtful in Prashant Bhushan’s answer was his juxtaposition of Justice Krishna Iyer and Justice K.G. Balakrishnan to claim that a Brahmin man can be more sensitive to caste issues than a Dalit man. This is not only inappropriate but also a bad analogy. If we were to look at the track records of all the upper-caste judges and place them in front of Justice Krishna Iyer’s, most will fall far short. So what does this say about other upper-caste judges? We never ask this question, do we? Why are we not shocked that, in the past 70 years, the number of judges from the Dalit community in the Supreme Court is in the low single digits, that there has been none from an adivasi community, and that the number of women is still very low.
None of this will change unless we consider a policy of reservations. If someone argues that our courts have done pretty well, in spite of being dominated by upper caste men, I will argue that we would have done far better if we had had greater diversity in our judiciary. The courts are there not only to protect the marginalised; they are there to expand the contours of our understanding of the constitution. More Dalits, Adivasis, women, and queer judges would result in a cultured court.
We should keep in mind that our precious constitution is what it is because, at the helm of its creation, was a man who knew what it meant to be discriminated against.
T.M. Krishna is a musician, author and activist.