By PS Krishnan, IAS (Retd)*
Almost all Law Officers appointed by successive Governments, while being eminent and distinguished lawyers with deep knowledge of Constitutional laws and legal issues, have no substantive and in-depth knowledge of the socio-historical facts pertaining to the severe oppression of Scheduled Castes (SCs) and Scheduled Tribes (STs) and, though to a lesser extent, also the Socially and Educationally Backward Classes (SEdBCs), through the centuries of history and decades of our independence till now.
They also do not have in-depth knowledge of Constitutional provisions pertaining to them. There have been, in some periods, a few exceptional law officers, who had some background of these aspects and who were painstaking enough to get further briefed.
A personnel policy should be laid down that at least some of the Law Officers at different levels of Attorney General (AG), Solicitor General (SG), Additional Solicitor Generals (ASGs) and Assistant SGs should be selected from among lawyers who have such substantive and in-depth knowledge and commitment to the legitimate cause and rights of the SCs, STs and SEdBCs, as evidenced by their long and consistent handling of cases in defence of the rights of these three deprived classes and in defence of legislative and executive measures taken to meet their legitimate rights and genuine needs.
It is the duty of the officers concerned to brief the law officers and be present in the court during proceedings to give information and instructions, as I used to do in important cases pertaining to the SCs, STs and SEdBCs when I was in Service till 1990-end. But for this there have to be, in the Ministries concerned, persons with deep knowledge and experience of socio-historical facts and issues pertaining to these deprived classes and commitment to the legitimate needs and Constitutional rights of these classes.
The personnel policy of the Government consistently selects officers with knowledge and expertise in areas like finance, economic policy, industrial development, infrastructure development, defence, external affairs etc for the respective Ministries. In the case of the Ministries concerned with these deprived classes, there is no such approach. The result is that, subject to exceptions, in certain brief periods, there is nobody in the official machinery capable of effectively briefing, guiding and instructing the law officers.
Nor do they try to fill this gap by tapping knowledge available outside the system. There have been exceptions like the initiative taken by the then HRD Minister the late Shri Arjun Singh and the then HRD Secretary the late Shri Sudip Banerjee, who sought my help, years after my retirement, as Advisor in defending the case of the Central Educational Institutions (Reservation in Admissions) Act case [Ashoka Kumar Thakur case] in 2006 to 2008, which I agreed to on my condition that no remuneration shall be paid to me, and I thoroughly briefed the then AG, ASG and Special Counsel, and also lawyers for State Governments and organizations which were with the Central Government in this case, and orchestrated and symphonized the entire defence, and I was personally present on every day of the proceedings in the court, furnishing on the spot information to the lawyers on matters raised by the Bench, resulting in the unanimous judgment in favour of the Government’s correct position and legislation and the related Constitution Amendment.
Further, there is a general tendency for officers to seek to find placement in economic and other “prestigious” Ministries and avoid Ministries dealing with the deprived classes and categories, who form the vast majority of the people of India.
The personnel policy needs to be made sensitive to carefully identify and provide to the Ministries dealing with SCs, STs and SEdBCs, officers with the right attitude to SCs, STs, SEdBCs and experience and competence in dealing with their issues.
There is also need to have a personnel policy of special incentives. One instance is, no officer should be allowed to go into coveted Ministries unless he or she has spent not less than five years in the Ministries dealing with the three deprived classes.
As a result of the gaps above, cases involving the Constitutional rights and genuine needs of SCs, STs and SEdBCs too often go by default. Sometimes, certain law officers have even made erroneous and harmful admissions. For example, one law officer made the erroneous and atrocious admission in the Supreme Court that there is rampant misuse of the SC and ST (Prevention of Atrocities) Act. In many other cases also, the correct and full facts do not get placed before the Supreme Court and High Courts.
There is no policy in the selection of judges for High Courts and Supreme Court to select some of the persons with this background and commitment. For example, at present there is not a single judge of the SCs and STs in the Supreme Court. The National Commission for Review of the Working of Constitution, set up in 2000 under the Chairmanship of the Chief Justice (Retd) M.N. Venkatachalaiah, by the Vajpayee Government, which submitted its Report in 2002 to the then Law Minister Shri Arun Jaitley, has pointed out the need for an advantage, for the judiciary itself, of having judges from SCs, STs and SEdBCs in the High Courts and Supreme Court. But its recommendations are yet to be seriously considered.
The social imbalance on the Benches of the High Courts and Supreme Court has to be rectified by taking pains to identify district-level judges belonging to SC, STs and SEdBCs and lawyers belonging to these classes, who by their performance have shown in-depth understanding of the issues of SCs, STs and SEdBCs, along the lines of the recommendations of the Venkatachalaiah Commission, and as I have been writing to successive Law Ministers of successive Governments.
A long-term measure is to operationalize the 42nd Constitution Amendment of 1976 and create an All-India Judicial Service, in which there will automatically be reservation for SCs, STs and SEdBCs as for other All-India and Central Services, creating a large pool of SC, ST and SEdBC law officers from which future appointments of judges to the High Courts and Supreme Court can be made. I have been recommending this too to successive Law Ministers of successive Governments.
The present Law Minister has been expressing his intention to create such a Service. But he has expressed hesitation as the High Courts are not in agreement. As there is a Constitutional provision, there is no need to secure the consent of the High Courts. When it is Constitutionally possible and still it is not done, citing one reason or the other, the seriousness and sincerity of expressions of intent will come under doubt.
The draft revised MOP must provide for selection of adequate proportion district-level judges and lawyers belonging to SCs, STs and SEdBCs, possessing the prescribed qualifications and the above qualities, to the High Court Benches and Supreme Court Bench.
One qualification prescribed for a lawyer to be considered is that of income. High income is possible only for lawyers who deal with cases of persons accused of evasion of Income Taxes, Customs and Excise duties etc. Instead, one of the important qualifications should be that a lawyer for consideration of appointment to the High Court and Supreme Court Benches should have been actively, effectively and consistently taking up cases in defence of the rights of the deprived classes and categories. The experience and commitment of such lawyers will be valuable for the High Court and Supreme Court Benches, but they will not be able to fulfill the present income criteria.
The detailed suggestions made by me on these points and pending with the past and present Law Ministers needs to be seriously considered, accepted and implemented.
The office of the PM is extremely important in guiding governance at the national level. The office of successive PMs has had eminent civil servants and others with expertise in areas like industrial development, infrastructure development, defence, external affairs etc. While these are important, there has been, most of the time, not a single officer in the PMO with in-depth knowledge and experience of the issues of the deprived classes and Constitutional provisions for them, and commitment to their legitimate needs and rights.
There have been rare exceptions like Shri K.R. Venugopal, who was Secretary to the PM during Shri V.P. Singh’s tenure and continued into Shri P.V. Narasimha Rao’s tenure. This gap continues in the present PMO also. As a result, important matters pertaining to these classes are not brought to the PM’s notice in the right perspective in time and with top urgency that they deserve, thereby enabling the PM to respond and intervene promptly without delay.
The Akhil Bharatiya Vanvasi Kalyan Ashram (ABVKA), in the meeting of its Kendriya Karyakari Mandal at Satna on February 24, has inter alia underlined the Government’s silence on the February 13 order of the Supreme Court, adversely affecting many lakhs of people of the STs, and deplored that even after two weeks of the Supreme Court order, no statement had come from the Government, because of which agony and panic is prevailing among the tribal community. Such Governmental silence is on account of the above gap in the PMO and in the concerned Ministries.
After angry and agonized reactions from STs like the Dongria Kondhs and those working for the rights of the STs and interventions by me and a few other such persons with the Ministry of Tribal Affairs, that Ministry moved the Supreme Court on 27.02.2019 and secured from it an Order on 28.02.2019 staying its earlier Order of 13.02.2019 for eviction of lakhs of STs. But in the meanwhile, much damage has been caused by creating doubts about whether the Government seriously tried to defend this case earlier and prevent the Order of 13.02.2019. The proceedings in the Supreme Court on 28.02.2019 and angry comments of the judges and the admission of the Solicitor General clearly bring out all the above gaps, namely,
(a) Government’s long “slumber”, in the words of the a h, all theses years
(b) Solicitor General’s admission of neglect
(c) Non-availability of knowledge about the conditions and plight of STs, especially in Scheduled Areas, in the Bench itself, prior to 28.02.2019
(d) Absence of necessary knowledge, background and commitment on the part of the governance and administrative system in Ministries dealing with the deprived classes and in the PMO.
The PMO, which is the nerve-centre of national governance, needs carefully selected Principal Secretary and/or Secretary-level officers with in-depth knowledge and experience of the above three deprived classes of our people, and proven commitment to their legitimate needs and rights, who should keep watch over all matters of significance to them, maintain close contact with the concerned Ministries and ensure that nothing negative is allowed to happen and positive measures required are taken [e.g., proper and speedy implementation of Forest Rights Act, SC and ST (Prevention of Atrocities Act) – the implementation of these and other such Acts is at present casual and lackadaisical], and bring to the PM’s notice in time important developments requiring PM’s intervention.
Such persons are available. It is for the Prime Minister and Ministers to look for such persons, identify them and bring them on board. If such persons are there, it will become possible for the PM to intervene in time and effectively as the PM has done in the aftermath of Pulwama.
*Former secretary, Ministry of Welfare, Government of India
This article is based on the author’s analysis of serious gaps in governance and administrative system in respect of issues and Court Cases pertaining to SCs, STs and SEDBCs and Suggested Remedial Measures