THE Courts and the Constitution Conference, organized by the Editorial Team of the ‘Law and Other Things’ blog [LAOT] in collaboration with its institutional sponsors, the Center for Constitutional Law, Policy & Good Governance, NALSAR University of Law, and the School for Policy and Governance, Azim Premji University [APU], kicked off earlier today. The event is taking place in hybrid mode, being conducted online as well as at the campus of NALSAR University, Hyderabad.
The conference started with welcoming remarks by Professor Faizan Mustafa, Vice-Chancellor, NALSAR, Sitharamam Kakarala, Director of School of Policy and Governance, APU, and Bhavisha Sharma and Gayatri Gupta, Editors-in-Chief, LAOT.
Panel I of the conference was themed ‘The State of Judiciary’, and brought forth diverse perspectives on its current status as an institution in India. The panel included three speakers: Deepika Kinhal from Vidhi Center for Legal Policy, Bangalore; Anurag Bhaskar, who is an Assistant Professor at the Jindal Global Law School; and Mihir Rajamane, an undergraduate student at University of Oxford.
‘Administrative side of the judiciary needs more focus’
Kinhal threw light on three distinct points in her address, and gave insight into how the stakeholders in the judicial system need to focus more on the administrative side of the system. She also talked about how data can be used with an interdisplicarny approach, not just in the understanding of substantive approach of law but also the administration of the judiciary.
Due to the aura that the judiciary has built as a system, judicial officers are not viewed as ordinary humans in need of a decent salary, decent infrastructure and basic necessities at the place of work. Such basic foundational requirements are not in place.
In her opinion, when we talk about larger issues concerning the judiciary, common issues like vacancy, pendency of suits, and the colonial structures of the Supreme Court and High Courts are need to be addressed too. It is also essential to distinguish between what the higher judiciary and lower judiciary deals with.
In India, the collegium system is responsible for appointments of judges: almost 25 collegiums across high courts look out for 1,000 judges, whereas the Supreme Court collegium looks over 30 judges. Overall, 22,000 judges at the district level deal with 95 per cent of all cases registered in our country.
It is pertinent to note that the criminal justice system is effectively availed mostly by the elite, who are the ones who have the access to higher judiciary. According to Kinhal, as a law student, it is stupendously important to understand not just the judicial side, but also the administrative side of the judicial system in India. The database published by the National Judicial Data Grid, accounting the pendency of cases at different levels of courts, as well as the category of cases pending, whether they are criminal or civil, is a goldmine for researchers who want to understand the judiciary as an institution.
The law allows for adjournment, but the factors on which the pendency of these cases depends are of subtle importance too; these factors include the listing process, the way in which judges are managing their dockets, bench clerks, administrative staff vacancy – all these factors adhere to how one’s case progresses.
Representation is necessary; it gives a boost to the public confidence in the institution and lends it democratic legitimacy. Representation matters because in the absence of it, the credibility of an institution such as the Supreme Court cannot flourish in a constitutional democracy if its marginalized communities do not explicitly express their trust in the institution.
In India, 4.6 crore cases are pending to be decided by courts of law, out of which 4 crore are pending at the level of district court. The legal profession being called a noble one doesn’t mean that judicial officers are not seeking conventional working conditions. Their profession demands the delivery of justice as a service but not a charity. When we look at other sectors such as the health sector, leaps and bounds have changed but the question that arises here is whether the judiciary has kept pace with that or not. In her opinion, due to the aura that the judiciary has built as a system, judicial officers are not viewed as ordinary humans in need of a decent salary, decent infrastructure and basic necessities at the place of work. Such basic foundational requirements are not in place. Many district courts, for example, still do not have washrooms for female litigants.
These kinds of problems exist in any large scale institution. If the banking sector and health care sectors can change as much as they have in the last ten years, then why can’t judiciary, asked Kinhal.
While focusing on the contemporary scenario of the COVID pandemic, she said that across two years, only one lakh twenty thousand cases were registered due to COVID. The explanation can’t be that the disputes did not arise. In fact, there were a large number of breaches of existing contracts in the pandemic. The question is: How do we address this sheer volume of cases? One solution is to increase the capacity of functions within the judiciary.
In her concluding remarks, she also pointed out that the judiciary as a whole is still in a gray area and does not know in which direction it is headed. There is a lot of confusion as to the implementation of vernacular languages, implementation of alternative dispute resolution at the ground stage of civil suits, and gender representation. Majorly, the judiciary lack policies to count the stars that it aims to reach, according to Kinhal.
Lack of diversity in the legal profession
Bhaskar shared key points from a report co-authored by him titled Dalit Justice Defenders in India, published by the American Bar Association last year as part of a larger report titled ‘Challenges for Dalits in South Asia’s Legal Community’. He dealt with multidisciplinary questions around the representations of tribals, nomads, LGBTQIA+ communities, and scheduled tribes in the Indian judiciary. His report constituted different aspects of hurdles faced by these suppressed communities in representation in the Indian legal profession. He interviewed individuals from different walks of life to inculcate their general perspective on the representation of these communities, which is why it is divided into different sections to do justice to each aspect.
According to Bhaskar, the issue of representation of socially oppressed groups and communities needs to be discussed because the suppression they have been subjected to also becomes a question of democratic legitimacy. Representation is necessary; it gives a boost to the public confidence in the institution and lends it democratic legitimacy. Representation matters because in the absence of it, the credibility of an institution such as the Supreme Court cannot flourish in a constitutional democracy if its marginalized communities do not explicitly express their trust in the institution, says Bhaskar in the report.
He emphasized that the hurdle for progress in representation is due to the lack of data collected for examining the representation of Dalits at the Bar and on the Bench. He also pointed out the first time in the history of the Republic that a President had chosen to put his suggestion on record about underrepresentation of the certain castes and groups in the higher echelons of the judiciary. The president, K.R. Narayanan in 1998 confronted the then Chief Justice of India, A.S. Anand, over the issue of non-appointment of judges from Dalit and tribal communities to the Supreme Court.
While talking about the Executive’s opinion and take on the issue, he also talked out the incumbent president, Ram Nath Kovind, who has also raised concerns over the low representation of scheduled castes, scheduled tribes and other backward classes in the judiciary. According to Bhaskar, there was a brief period when the issue was raised in the late 1970s and early 1980s —and we saw the entry of people like Justices M.N. Rao and K.G. Balakrishnan — but these were individual instances that did not signal or inaugurate systemic changes in the structure of the judiciary. The judiciary, in the matter of representation, has stood outside of the principles it enforces.
From the report, he asserted that the “legal profession is mostly dominated by the elitists.” In his concluding remarks, he provided the following suggestions for the judiciary, the Government of India, law firms and the Bar Council of India:
Collect and publish data on social diversity in the legal profession and the judiciary every year for public discourse and scrutiny.
Create a policy for the Supreme Court and High Courts to make the recruitment process of law clerks/judicial clerks transparent and inclusive by maintaining a fair representation of young professionals from Dalit and other marginalized social groups
Encourage senior advocates to mentor lawyers from the Dalit community, and for bar councils and law firms to create institutional mentorship and scholarship programs for Dalit lawyers, guaranteeing them greater access to work in various chambers.
Establish schemes in bar councils and bar associations to support young law graduates from the Dalit community who wish to enter the field of litigation.
Quantifying the Supreme Court’s suo motu jurisdiction
Rajamane, currently studying at Oxford University, presented his views and analysis of the data collected on the Supreme Court’s suo motu writ jurisdiction in order to quantify the same. He emphasized on the practice of the constitutional courts in India taking up matters suo motu (on their own initiative) without being petitioned by a claimant or party, to address a situation the judges regard as requiring extraordinary intervention on the part of the court.
The number of cases initiated through the court’s inherent suo motu cognizance have been the highest in the last two years including 2022 (till March). The reason could possibly be awareness of the judiciary or the methods through which such cases can be spotted, which the court finds of utmost importance to be taken up.
According to his analysis, the number of cases initiated through the court’s inherent suo motu cognizance have been the highest in the last two years including 2022 (till March). The reason could possibly be awareness of the judiciary or the methods through which such cases can be spotted, which the court finds of utmost importance to be taken up. The sources through which the court takes account of these cases is also a determining factor, said Rajamane.
In his analysis, the largest number of cases were sourced through the media, which signifies that the media’s role as a fourth pillar of democracy is vital. The case on safeguarding judges cited both media reports and the facts that the President of the Supreme Court Bar Association requested a suo motu intervention in court- it is also inclusive of the media as a source. The other sources, as elucidated by Rajamane, are letters, cases which caught sight of the Supreme Court during other proceedings, cases which the court took cognizance due to the effects of the pandemic, cases which are converted through petitions, and some route through unclear sources.
The case on financial aid for members of the Bar includes both the effect of COVID-19 and the demands from the Bar. In his concluding remarks, Rajamane threw light on the scope of cases categorized in three broad categories: limited issue, incident on specific policy, and systemic issue. According to his data analysis, in 2020, cases which were taken up the court and dealt with limited issues were generally about COVID-19, and they constituted 67 per cent of all cases based on suo-motu jurisdiction. The percentage decreased in 2021, and the courts took 30 per cent more cognizance of matters during other proceedings than in 2020.