Supreme Court Judge Justice Ujjal Bhuyan has asserted that the goal of a Viksit Bharat by 2047 cannot be achieved through criminalisation of dissent, mindless arrests under the anti-terror law UAPA and "deep social fault lines".
Speaking at 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 it with the figure of more than 50 per cent women making it to the posts of judicial officers in district judiciary across the country.
"But has it been replicated in constitutional courts? That is the question. That is where the scrutiny of the collegium system comes in. Why is it that when the assessment becomes subjective, women do not make the grade? Out of 287 SC judges since 1950, we had a total of only 11 women judges. Why? Starting with Fathima Beevi and now Justice Nagarathna, it is some two per cent," Justice Bhuyan said.
He said that as per the collegium's subjective assessment criteria, only a minuscule get selected as judges of high courts and the Supreme Court.
Raising serious concerns over the application of the Unlawful Activities (Prevention) Act (UAPA), he referred to the data from 2019 to 2023 and said a truly developed nation must prioritise constitutional values over political slogans.
"Low convictions under UAPA show overuse, if not misuse, of the law," he said. Presenting data from 2019 till 2023 of the people arrested under the UAPA, he said thousands were arrested, but the conviction rate is around five per cent.
"It shows consistently low conviction. What does it indicate, overuse if not misuse, and its impact on the criminal justice system. How much burden does it put on courts? This shows the vast majority were arrested but could not be convicted. This indicates many arrests were premature and unsupported by sufficient evidence," the judge said.
On the low representation of women in higher judiciary, he said they made up only 14 per cent of high court judges.
"In the 25 HCs, we have only two women chief justices (CJs) - Gujarat and Meghalaya. One more will become CJ in a month's time. 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 judicial space. When India becomes a developed nation (Viksit Bharat by 2047), there should be more parity in gender representation in judiciary. SC must be a rainbow institution, truly reflecting the diversity of the nation," he said.
"My model of Viksit Bharat is equal distribution of wealth and disappearance of acute disparity... which is also the goal set in directive principles of state policies in the Constitution," he said, adding that in developed India the "judiciary must remain judiciary" and "it can't be an eternal critic or a cheerleader".
He said in developed countries, there should be more room for debate and dissent.
"Debate should not be criminalised. There should be more tolerance towards diverse views. Divergent views should be respected. There should be more tolerance towards diverse views and criticism," he said.
On societal imbalances, he said, "Deep social fault lines are there. Viksit Bharat cannot countenance such fault lines.
"Parents cannot insist that their children will not have food prepared by a Dalit woman. That cannot be a Viksit Bharat model. We cannot have Viksit Bharat when Dalit people are made to stand in the corridor and people urinate on them. This can't be the model of development. Respect for the individual must be protected," he said.
Former CJI B R Gavai said there were many verdicts that said if the name of a person recommended for judgeship in a high court was returned for reconsideration by the government and reiterated by the collegium, the government had no option but to appoint them.
"But there are many instances where even after repeated reiterations, the persons have not been appointed," he lamented.
