Reservation on Judicial Posts with Analysis of State Of Bihar V. Bal Mukund Sah

In our country, the judiciary is the main cornerstone of democracy, assisting in the efficient operation of democracy. The judiciary is dominated by judges. It is necessary for judges to be efficient in order for the judiciary to be successful. There are many great judges in our country who have brought about various changes through their decisions, which have contributed to the overall development of the country. Judges are respected in our society, and people place a lot of trust and hope in them; therefore, it is critical to ensure that judges are appointed properly and without bias. Several provisions of our Indian Constitution relate with the appointment of Judges and must be observed in every area of the appointment.

APPOINTMENT PROCEDURE

Before District Judges are appointed, certain steps must be followed. According to Article 233, the appointment can be made only after conferring with the Governor of the State as well as the Judges of the High Court that has jurisdiction in the State. Article 235 of the Indian Constitution grants the High Court’s authority over persons in judicial service in district courts and other subordinate courts. Article 233-A confirms district court appointments made before to the start of the Constitution (Twentieth Amendment) Act, 1966, and they are regarded to be legal even if they do not comply with the provisions of Articles 233 and 235.

THE REQUIREMENT OF RESERVATION FOR REPRESENTATION

The idea of reservation in judiciary recommended as a remedy to the problem of marginalised populations’ lack of representation in the judiciary. There is no any  prohibits for  the appointment of SC, ST, OBC, and minority justices to the Supreme Court and high courts.

There is currently no SC or ST judge on the Supreme Court.

In a report issued in 2000, the Parliamentary Committee on the Welfare of Scheduled Castes and Scheduled Tribes, chaired by BJP leader Karia Munda, recommended that the government amend Articles 217 and 124 of the Constitution to provide adequate representation to the deprived sections in the higher judiciary.

“Judges take an oath to preserve the Constitution and the laws.” However, by asserting jurisdiction over the Constitution, the Supreme Court and a few high courts practise untouchability and are violating Article 16(4) and Article 16(4A),” according to the report.

However, nothing has been done to change the status quo, and as things stand, the government, too, is not doing anything.

CASE LAW STATE OF BIHAR & ANR VS BAL MUKUND SAH & ORS

Fact of the case

The governor of Bihar issued the ordinance, which later became the impugned Act, by which the system of 50% reservations for reserved category candidates was directed to be applied while conducting direct recruitment to the jobs. On November 16, 1993, State asked the High Court to fill vacancies in the cadre of District Judges based on the reservation established by the Ordinance, which was later followed by the Act. The Patna High Court, in a letter dated December 16, 1993, insisted that recruitment to the District Judiciary be made only on the basis of the 1951 Rules. The High Court informed the authorities concerned in a communication dated 5th April 1994, that no reservation of posts in the district cadre could be implemented and that when making appointments from members of the Bar for direct recruitment, preference may be given to Scheduled Caste (for short SC) and Scheduled Tribe (for short ST) candidates who are of equal merit with general category candidates. On April 7, 1994, the High Court announced that there were 54 vacancies in the district cadre that needed to be filled. The State Government, on the other hand, issued the contested advertising on June 16, 1994, in which 50% of the available District Judge seats were to be filled by reserved category candidates and the remaining 50%, i.e. 27, by open category candidates. This advertisement was challenged in the High Court by the writ petitioners. The High Court, as previously stated, granted the writ petition and overturned the condition of reservation sought to be imposed by the impugned advertisement.

ISSUE RAISED

  1. Whether it is open to the governor i.e., the state government to reserve posts in making direct recruitment of additional district judge contrary to the advice of the high court
  2. Whether the provisions of the Bihar reservation of vacancies in post and service (SC,ST,&OBC)act 1991 are applicable to the judicial service in the state of Bihar?

JUDGEMENT

The majority ruling further stated that the ability of the “State” to make any provision under Article 16(4) does not necessarily imply that such provision can only be adopted by Parliament or any State Legislature. The government can also implement reservation by executive orders, as appears to have been done in Bihar in the case of subordinate judicial service. Because the challenged Act making reservations in services, including the judicial service, has not been challenged on the grounds of being in violation of Fundamental Rights or any constitutional requirement, there is no need to evaluate its constitutional validity on the aforementioned touchstones. Given this legal situation, it must now be determined whether the challenged Act included any provision for reservation in judicial service as well. Following a review of its different provisions, the High Court concluded that the Act did not pertain to judicial service and that the Government of Bihar’s insistence on issuing notifications in line with the said Act by making provision for reservation was uncalled for. The Court concluded that the words “office or department” included in the definition of the term “establishment” under Section 2(c) of the Act related to the Court’s office or department and not the Court itself. It also ruled that posts in the judicial service may not be reserved in violation of the Reservation Act. In interpreting Section 4, the High Court stated: “The correct construction of Section 4, in the context, read with Sections 2(c) and 2(d) .

CONCLUSION

IT IS ESSENTIAL AND VITAL for the establishment of true participatory democracy that all sections and classes of people, be they backward classes, scheduled castes, scheduled tribes, minorities, or women, be given equal opportunity so that outstanding and meritorious candidates from all sections of society, rather than any selective or insular group, participate in judicial administration.

Written By:- Hrithik Roushan

Lovely Professional University

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