SEEMA CHISHTI, Indian Express,October 28, 2006

Positive judicial activism is possible only when the judiciary can disengage itself from the ruling bloc and position itself on the side of the common people.

Justice benefit Rich in India

Sachar: Andhra the only state where percentage of Muslims in judiciary higher than population share, Bengal again at bottom; we need an inclusive democracy, says ex-CJ J S Verma

NEW DELHI, OCTOBER 27: Be it Education, Health, Transport, or Home, in virtually all departments of state governments, the share of Muslims employed is way below their share in the population. That’s one of the key findings of the Prime Minister-appointed Justice Rajinder Sachar panel looking into the state of the Muslims in India, as first reported in The Indian Express today. But, arguably, in no other wing does this under-representation raise as many questions as in the state judiciary.

 Data supplied by state governments themselves show that just as in all government jobs, there is a glaring gap between the share of Muslims in the population and their share in judicial jobs.

Ironically, in two states that have high Muslim population share, West Bengal (25.2%) and Assam (30.9%), the percentage of Muslim employees in key positions in the state judiciary is barely 5 and 9.4 respectively. This is in tune with West Bengal’s dismal overall Muslim employment data as well.

The “judiciary” for which the Sachar Committee asked for data includes officers at all levels, from Advocate Generals and District & Session Judges to Additional District & Session Judges, Chief Judicial Magistrates, Principal Judges, Munsifs, Public Prosecutors, and even Group A, B, C & D employees in lower courts.

These officers constitute the basic foundation of the justice-delivery system in the country. Public Prosecutors are lawyers representing the government, District and Sessions Judges hear both criminal and civil cases. The lower judiciary has a state-level examination and some get elevated to District Session Judges and Additional District Session Judges.

There are differences across states: for example, in UP, all civil disputes first go to the Munsif, whereas in Delhi all disputes over Rs 20 lakh go to the High Court but the rest all to the lower courts. Apart from being the first port of call for litigants, lower courts are where the bulk of litigation goes on — the Standing Committee of Home Affairs had estimated that about 80% of all pending matters are being heard in these district and subordinate courts.

The overall figure of merely 7.8% Muslim employees in this crucial area in the 12 high-Muslim population states surveyed at this level is a problem, admit experts. Says jurist Fali Nariman; “It is not just in multi-cultural democracies like ours that people feel the need to be represented adequately. Even in Australia, with far less diversity than India, for many years, people of Western Australia felt totally neglected as they had no representation in their highest Court. The judiciary at all levels in India caters to the administrative needs of the entire nation, which includes several religions and ethnic groups. Therefore, the judiciary should be reflective of a broader spectrum of experience, and at all levels.”

Even in Jammu and Kashmir, with the highest Muslim population share (66.97%), the Muslim share in the judiciary is just 48.3%.Andhra Pradesh has a unique record: Muslims there make up 12.4% of the judiciary as compared with their population share of of 9.2% — a higher than proportionate representation, unmatched by any other state.

This is worrying not because Muslim judicial officers would be expected to look after their own. Some, if not most, of the finest judgments of the Supreme Court or even independent judges on matters of social and religious violence and strife have not been taken by a “Muslim” bench: be it the matter of the Gujarat riot cases being re-tried or even the landmark Justice Srikrishna Report on the Bombay riots.

Yet, says former Chief Justice of India Justice J S Verma: “It’s not democracy alone that can sustain a society like India. It has to be an inclusive democracy. Democracy can last and be resilient only if all sections of society are taken along.”

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