Supreme Court judge Justice Ujjal Bhuyan said the goal of Viksit Bharat by 2047 cannot be achieved by criminalizing dissent, mindless arrests under the anti-terror law UAPA and “deep social wrongs”.
Addressing the first national conference of the Supreme Court Bar Association (SCBA) in Bengaluru on Sunday, Justice Bhuyan also lamented the poor representation of women in the higher judiciary. He contrasted this with the figure that more than 50 per cent of women have made it to judicial clerkships in the district judiciary across the country.
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“But has it been replicated in the Constitutional Courts? That is the question. This is where the review of the collegial system comes in. Why is it that when evaluation becomes subjective, women do not get the mark? Out of 287 SC judges since 1950, we have had a total of only 11 women judges. Why? Starting with Fathima Nagarath and now it is two percent of the justices.”
He said that as per the collegium’s subjective evaluation criteria, only a tiny few would make it to the High Court and Supreme Court judges.
Expressing serious concern over the implementation of the Unlawful Activities (Prevention) Act (UAPA), he referred to dates from 2019 to 2023 and said a truly developed nation must prioritize constitutional values over political slogans.
“The low convictions under the UAPA indicate excessive, if not misuse, of the law,” he said. Presenting figures from 2019 to 2023 on people arrested under the UAPA, he said thousands had been arrested but the conviction rate was around five per cent.
“It shows a persistently low conviction rate. What does that indicate, overuse, if not abuse, and its impact on the criminal justice system. How much of a burden does it place on the courts? It shows that the vast majority were arrested but could not be convicted. It indicates that many arrests were premature and not supported by sufficient evidence,” the judge said.
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Regarding the low representation of women in the higher judiciary, he said that they make up only 14 percent of the judges of the high courts.
“We have only two women chief justices (CJs) in 25 HCs – Gujarat and Meghalaya. One more will become CJ in a month. That is also highly inadequate, three out of 25 HCs,” he said.
“My research shows that whenever the recruitment process is objective, more women enter the judiciary. When India becomes a developed nation (Viksit Bharat by 2047), there should be more gender equality in the judiciary. The SC must be a rainbow institution that truly reflects the diversity of the nation,” he said.
“My model of Viksit Bharat is the equal distribution of wealth and the disappearance of acute disparities… which is also the goal set in the Directive Principles of State Policy in the Constitution,” he said, adding that in a developed India, “the judiciary must remain judicial” and “cannot be a perpetual critic or cheerleader”.
According to him, there should be more space for debate and disagreement in developed countries.
“Debate should not be criminalized. There should be more tolerance for different opinions. Different opinions should be respected. There should be more tolerance for different opinions and criticism,” he said.
On the social imbalance, he said, “There are deep social fault lines. Viksit Bharat cannot accept such fault lines.”
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“Parents cannot insist that their children do not have food prepared by a Dalit woman. This cannot be a Viksit Bharat model. We cannot have Viksit Bharat when Dalits are forced to stand on the corridor and people urinate on them. This cannot be a model of development. Respect for the individual must be protected,” he said.
Former CJI BR Gavai said that there are many judgments which say that if the name of a person recommended for a High Court judge was returned for reconsideration by the government and repeated by the collegium, the government had no option but to appoint them.
“But there are many cases where even after repeated repetition, persons have not been named,” he lamented.
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