To,
The Editor
Telegraph
This has a reference to the article “All India Inclusive Judiciary” appeared in the Telegraph dataed 7th June 2021. It is a welcome sign that the Chief Justice of India has taken a bold step in the meeting of the Chief Justices of the 26 High Courts that the names of the Scheduled Caste, Scheduled Tribe, Other Backward classes and women should be recommended for the appointment of judges in the high courts. However it is not correct to say that there is no statutory framework or constitutional requirement to ensure adequate representation of the various castes and communities and women among the judges. The framer of the constitution and Dr. Ambedkar the father of the constitution were very well aware that it is the judiciary that will ultimately provide the justice and it is/was possible only by making judiciary representative. My reading is that the Art.124 and 217 is only for making an appointment. How can constituent Assembly and Dr. Ambedkar forget mechanism for the recruitment of judges in the most important institution of the constitution. All appointments in the services of the State are provided under Art. 16 as equality of opportunity in the matter of public employment. By no stretch of imagination the appointment of judges in the services of the State is not the public employment. That is the reason the constitution makers have not provided separate mechanism for the recruitment except only for appointment. One should understand the the appointment and recruitment are two district terminologies. To make it amply clear All India Judicial Services are incorporated in Art.312(1) by the Constitution (Forty-second Amendment ) Act 1976 and it is still in vogue. Sub clause (3) of article 312 makes it clear that the all India judicial service referred to in clause(1) shall not include any post inferior to that of a district judge as defined in article 236. It means that the recruitment of district judge and High court judges can be made through All India Judicial Services. There is no “Will” of the representatives of the people in the Council of States and Parliament . Notwithstanding the provision in article 312 the recruitment of the judges can be made under article 16(1) of the constitution.
B.D.Borkar
National President, PPID
09/06/2021
