President within his rights to make suggestions
to Chief Justice, say lawyers
Amberish K Diwanji in New Delhi
Does the President of India have the right to suggest affirmative action in the judiciary to help the weaker sections? Is affirmative action tantamount to reservations? This is the debate raging today in legal and government circles.
As Rediff On The NeT reported on January 3, 1999, President K R Narayanan returned a law ministry file suggesting names to fill up vacancies in some high courts and the Supreme Court.
In the file sent by the Chief Justice of India and put up by Law Minister M Thambidurai, the President made a note about the under-representation of the scheduled castes and tribes in the higher judiciary.
The usual route of such files is from the law minister to the justice department secretary to the Intelligence Bureau to the prime minister. Once the prime minister approves it, the list goes to the President for assent, which normally takes a day or two. This time, however, the file returned to the law ministry several days late. And it did so with a suggestion: "I would like to record my views that while recommending the appointment of Supreme Court judges, it would be consonant with constitutional principles and the nation's social objectives if persons belonging to weaker sections of society like SC and ST, who comprise 25 per cent of the population, and women are given due consideration."
And when the story made it to the cover of India Today, a controversy had been created.
Several legal luminaries have warned against introducing reservations in the Supreme Court. Merit, they say, must prevail.
But political parties, sensing an opportunity, hold a contrary view. "Endorse the Rashtrapati's view," said the Samajwadi Party. Tamil Nadu Chief Minister M Karunanidhi too backed the idea. The Congress initially maintained silence, but later said the President's suggestion should be taken seriously.
Only the ruling Bharatiya Janata Party has so far maintained silence on the issue, insisting that the matter is for the Chief Justice of India and the President to sort out and must not be politicised. The media, for their part, took up the issue with gusto.
Actually, nowhere has the President even so much as mentioned reservation. That explosive word was introduced by the media. A Supreme Court lawyer, who sought anonymity, told Rediff On The NeT: "The magazine has only sensationalised the report by giving it a slant where none existed. We all know that the reservations topic is a red rag in India!"
Senior Supreme Court advocate Fali S Nariman seconded her. Speaking to Rediff On The NeT, he said, "The whole issue is being blown out of proportion by the media. There is no controversy between the President and the Chief Justice of India as claimed by some papers."
Nariman said the President has every right to make such a suggestion. "There is nothing wrong in what the President has said. Moreover, he has clearly stated that it is just one of the factors to be considered (when filling up vacancies for justices), like that of the need for more women."
The Supreme Court lawyer agreed. "There is nothing wrong in the President's noting. In fact, it is advisable because it proves that the President is not just a figurehead. And in the interest of the country, he has a right to make a noting about even more representation," she said.
In an article, Nariman flayed India Today for its report saying any notings on files between Rashtrapati Bhavan and the Supreme Court are confidential. Moreover, he pointed out, the President is well within his rights to seek greater representation from other sections.
But India Today Editor Prabhu Chawla says the media has the right to scrutinise the President's actions. Also, given the clamour for the right to information, is it fair to keep citizens ignorant of what's happening in the country's officialdom?
Yet, at a seminar on December 5, 1998, in the presence of Chief Justice Adarsh Sein Anand, the President had spoken of the need for the judiciary to reflect major regions and sections of society while emphasising that he was not asking for reservations in the judiciary.
That categorical assertion should have ended any doubts. Unfortunately, it did not.
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