A sentinel of Human Rights

1. A Sentinel of Human Rights As India celebrates the International Human Rights Day today, it must ask the judiciary a few important questions Lon L Fuller, in a rivetting piece written for the Harvard Law Review back in 1978, titled Forms and Limits of Adjudication, makes a compelling argument. He says that adjudication is a form of “social ordering” that manifests itself in two forms: Organisation by common aims and organisation by reciprocity. Institutions working on the principle of common aims share the same understanding and objectives whereas those working on reciprocity engage in a rational calculation of the advantages of an association. He explains this with an example. Imagine that a roadway connects two farms with a highway, which is now blocked by a boulder. There are two farmers. Neither of them is strong enough to remove the boulder by himself. However, when the two join hands, it is obviously an organisation by common aims. Now, imagine both the growers are engaged in subsistence farming and one has a large crop of onions whereas the other has an abundance of potatoes. A deal to trade a portion of their respective crops with each other will make both the agriculturists richer and that is the most obvious form of organisation by reciprocity. Now imagine the judiciary as an institution working on the principles of reciprocity by engaging itself in a mathematical calculation and drawing out the benefits of its association

2. with different branches of the Government. What if this happens in a democracy where the judiciary is supposed to remain independent and function as a sentinel of individual liberty, human rights and basic freedoms of the citizens? This criticism of the judiciary in the recent past, that it is an executive court, is by far not just the most important but also a sensitive one. If the court’s moral and political positioning is in alignment with the Government, it is problematic for the citizens. This is so, because then the court would fail in its most important job, enforcing the fundamental rights of citizens against the State’s arbitrary, unfair, unjust and unreasonable actions. The court is supposed to act and function as a counter-narrative to the executive. This duty becomes even more important in a democracy because democracies can tend to slip into a majoritarian rule, given that there is a very thin line between the two. Senior advocates, retired judges, civil society organisations, political parties and even citizens have gone on to criticise the courts for their alleged role in selectively protecting human rights of citizens and social activists. The criticism extends to the selective listing of cases, delay in hearing on important issues and the highly controversial issue of post- retirement jobs for judges. The judiciary has not responded to these criticisms. Many citizens believe that such a trend in the judiciary will see its rise and fall with the rise and fall of populist governments in the country. The last time we saw the judiciary working the way that it is today was during the era of Emergency. And that is a part of its history that India is not particularly proud of. Justifiably, the nation does not want to see history repeat itself in that sense. As we celebrate Human Rights Day today, it is important to look into other troubling issues that plague the judiciary, which have existed and have been continuously raised for quite some time now. Attorney-General KK Venugopal, while speaking recently on the ways to gender sensitise the courts and judges, said that one of the ways in which this could be done was by increasing the representation of women on the Bench. Article 15 of the Constitution of India guarantees to every citizen that s/he shall not be discriminated on the basis of their gender. Despite the presence of Article 15 in the Constitution as a fundamental right, only eight women judges have been appointed to the Supreme Court out of a total of 245 appointments post-Independence. Even more crucially, till date, no woman has ever served as the Chief Justice of India. This in a country that worships goddesses and reveres women as an incarnation of shakti (power). For Constitutional courts that are responsible to continuously challenge, transform and redefine stereotypical notions of gender, identity and race within the society, it is important to have wider and larger representation on the Bench from those who have had such experiences of their own. The criticism that the judiciary works like a hollow chamber, devoid of any human emotions, often falling into the trap of “abstract notions of justice”, flowing from complex and

3. incomprehensible legal jargon, can only be answered by increasing diversity within the judiciary and making it more and more representative. Another issue that needs to be focussed on is the huge pendency of cases. There are more than three crore cases pending before several courts in India. Litigants are often disillusioned when they approach the courts. Even the smallest of cases, involving little to no questions of law, take years if not decades to be decided. This huge pendency of cases and the continuous delay in deciding them has had three major consequences. First, it has led to the criminalisation of politics. More than 4,500 cases against sitting and former Members of Parliament and MLAs are still pending before several courts across the nation. Worryingly, many of these cases have been pending before the courts for decades. They range from serious and heinous offences like crimes against women, corruption and so on, to offences that have long-term impacts on the democratic fabric of our country. These include complaints registered against crimes like damaging public property, instigating riots, religious offences, and so on. What this has done is that it has only inspired a future generation of politicians to commit more of such crimes and get away with it easily. This has resultantly weakened the strength of our democracy as someone who at one time used to commit crimes is now sitting in the temple of democracy, i.e. the Parliament. Second, it has motivated criminals to commit excesses across the country almost professionally and third, this has pushed the victims to a position where they now prefer not approaching the court at all even after a crime. Cases, therefore, don’t get reported in our police stations and instead end with an out of court compromise. Access to justice is a fundamental right of the citizens in this country and yet we see that a majority of our population doesn’t even understand what it means to have been justly adjudicated. Even cases where the police commit violation of human rights don’t get heard speedily, eroding the faith of the people in the justice system. The common perception that judges are extremely powerful adjudicators and that the parties before the court will in no case be given biased treatment needs to be actualised. The courts can no longer work as unaccountable isolated chambers of delivering justice. So, when India celebrates Human Rights Day today and Minorities Rights day on December 18, the questions that need to be asked to the most important institution responsible for enforcing these rights, is this: Has the judiciary, in the recent past, done enough to protect the rights of those who are standing at the end of the line, those who are vulnerable, weak, fragile, historically sidelined and come from the lowest strata of the society? If it hasn’t then it needs to. Because the judiciary as an institution survives only on the symbolic value of the image that it has created for itself. Its extraordinarily rich history of the most landmark judgments in the past has forced foreign courts to cite them and set them as a

4. precedent in their respective jurisdictions. If this rich history of the court was to be attacked, it will have long-term impacts which will be irreversible. The apex court needs to counter the narrative that it is an executive court by listing matters of urgent public interest before Benches without delay and impartially. It needs to add more judges to the Bar by making the process of appointments to the higher judiciary more transparent, accountable and representative. The judiciary needs to fix the narrative that offence will not be taken personally, and dissent will be appreciated as a form of deliberative democracy. Unless the judiciary adopts these as its guiding principles, it will fail in its most important duty and thereafter lose its credibility. Both of which are a nightmare for the country today. (The writer is with the National Law University, Visakhapatnam)