It is the goal of social revolution that connects the aam aadmi to the judiciary and to its highest institution, the Supreme Court of India. By Prof. G. MOHAN GOPAL Frontline May 3, 2013
WHAT should be the appropriate mea-sure of the relationship between the apex court of a country and its common people? Should an apex court be evaluated by who invokes its jurisdiction, from which area and for what purpose? Is an apex court better if it receives more cases? Or if it receives fewer cases? How relevant are these criteria to the assessment of an apex court?
As a general matter, the role of an apex court is interpreting and laying down principles of law that bind the courts below, especially when lower courts disagree. Any evaluation of an apex court should normally be against this responsibility.
The Indian Supreme Court is, however, cast in an entirely different mould. It described its role in a landmark 1982 judgment (S.P. Gupta vs Union of India) as follows: “The judiciary has a socio-economic destination and a creative function. It has …to become an arm of the socio-economic revolution and perform an active role calculated to bring social justice within the reach of the common man. It cannot remain content to act merely as an umpire but it must be functionally involved in the goal of socio-economic justice… [this calls] for judicial cadres who share the fighting faith of the Constitution and who are imbued with the constitutional values” (emphasis added, throughout). Judiciaries are typically institutions established by ruling classes to uphold the existing social order. According to our Supreme Court, our judiciary’s role is exactly the opposite. Our Constitution makes our judiciary the first revolutionary judiciary in the world—established not to defend the social order but to change it.
Justice D.A. Desai’s 117th Report of the Law Commission of India on Judicial Training (1986) reiterated the constitutional vision of the role of the judiciary—that it would transform “overnight” from an extension of the colonial law and order machinery to “an effective instrument in ushering in social revolution in Republican India”, and functioning as a “sentinel on the qui vive”… “a guardian angel of the fundamental rights of citizens”.
The unique role of the judiciary in bringing about social transformation was explicitly recognised and discussed in the Constituent Assembly. Prof. K.T. Shah, a distinguished economist who was a member of the Assembly, said in a debate on November 19, 1948, that, “[The judiciary] is the only authority that we are going to set up in the Constitutionto give effect to whatever hopes and aspirations, ambitions and desires, we may have in making these laws and in laying down this Constitution.”
The Constitution makes the aam aadmi’s age-old struggle for social justice the struggle of the judiciary. It is this goal of social revolution that connects the aam aadmi to the judiciary, and to its highest institution, the Supreme Court of India.
Any evaluation of the Supreme Court of India’s relationship with common people must therefore be based on a qualitative assessment of its contribution to the social revolution that the Constitution envisages to establish a society based on the equality, liberty, dignity of the individual and the unity and integrity of the nation.
The Supreme Court has made important contributions towards the cause of constitutional social revolution, especially in the fields of human rights, environmental protection and accountability in governance. These contributions were made mainly (although not exclusively) in the 18 years between 1973 (when Justices V.R. Krishna Iyer and P.N. Bhagwati joined the court) and 1991 (when economic reforms began). It was during this period that Justice Krishna Iyer and his colleagues shifted the “centre of gravity of justice” (in his own words) to the protection of the public interest, and opened up access of the poor to the Supreme Court.
Change in approach The 22 years since 1991 have seen a radical change in the approach of the court. It did not go back to the first phase of resisting social change. Instead, it seems to have shifted (as a general trend) to a different approach to social change—through market-based economic growth rather than through redistribution of wealth or breaking down social oligopolies as envisaged in the Constitution.
This is not an isolated view. Social change through market-based economic growth enjoys the support of a strong political consensus (across the political spectrum). It is the aspiration of a new and powerful middle class. However, this approach is not in line with many aspects of the specific provisions of the constitutional vision of social justice. It does not give primacy to the working class —whether in the unorganised sector or in the organised sector. It has little room for either redistribution of assets (even through protection of minimum wages, progressive taxation and other labour rights) or for breaking down social injustice through, for example, affirmative action. It favours the use of coercive measures to put down the struggle of the poor to retain access to land, water and food. It demands better and stronger top-down executive governance and a whittling down of democracy where needed in the interests of growth. This approach has the strong support of a very vocal corporate-dominated media.
This new, pro-middle-class path to social change is, however, not fully in line with the constitutional vision of social revolution centred around the concerns of the poor and emphasising redistributive measures and equality not only of opportunity but also of outcomes.
The shift in the approach of the judiciary to a growth-driven model of social change is materially altering the relationship between the courts (including the Supreme Court) and the poor. There is no question that the courts continue to be the last resort of the poor in their quest for justice. But courts are not as forthcoming or responsive as they used to be in defending the causes of the poor. The PIL (public interest litigation) window has been narrowed considerably in the Supreme Court and in the High Courts. The hands-off approach to “economic policy” has reduced the scope of challenge. Egregious issues of social injustice (such as manual scavenging) are not getting required attention or priority.
Social responsibility Courts are the legitimate channel for common people to fight injustice. If this window is closed, people will inevitably turn to illegitimate channels. The Supreme Court has a special responsibility in this regard because of the very poor access of people to lower courts. Poor people are unable to access courts for a variety of reasons. As a result, India has amongst the lowest number of new cases filed each year per thousand population (some 15 new cases per thousand population as against around 250 cases in Europe and 330 in the United States. In India, the range of new cases per thousand population varies from 62 in Delhi to three new cases per thousand population per annum in Bihar and Jharkhand. The rate rises with literacy—the higher the literacy, the higher the number of cases). India’s main challenge is docket exclusion, not docket explosion.
It is the inaccessibility of common people to lower courts that made Dr B.R. Ambedkar remark once that he considered Article 32 the most important provision in the Constitution—the unique and exceptional provision that gives the right to every citizen todirectly move the Supreme Court of India for the protection of his/her fundamental rights.
In a country where fundamental rights are violated more commonly than people are clothed or fed, Article 32 petitions by poor people should logically have become the single largest type of case filed in the Supreme Court. That Article 32 petitions by the poor are today amongst the least invoked jurisdictions is stark evidence of the relationship between the Supreme Court and the common person.There are three important issues that need to be addressed if the courts are to fulfil their role in catalysing social revolution.
Selection of judges First, and foremost, the process of judge selection needs to be revised to take into account the role of the judiciary in the constitutional scheme of social change. The judicial oath prescribed in the Constitution requires every judge to “bear true faith and allegiance to the Constitution of India”. The Constitution of India has been interpreted by the Supreme Court as a charter for social revolution with a specific content and a specific path as laid out in Part III, Part IV and Part IVA of the Constitution.
If the judicial oath is taken seriously, we will need to include in the process of judicial selection explicit consideration of whether or not proposed judges in fact have the faith in the constitutional vision to which they will be required to swear allegiance. This is not to be mistaken for a call for commitment to any political cause or to a static or to a fixed constitutional philosophy. Certainly, however, it must include, at the very minimum, demonstrated faith in justice (social, economic and political), equality, liberty, dignity and the ideas of democracy, socialism and secularism as laid down in the Constitution—as evidenced in the life and habits of judicial candidates.
A misogynistic man is not going to have a miraculous change in his philosophical outlook on reciting the judicial pledge. Donning a judicial robe may change how he looks but will not change who he is. A young lawyer once asked me a question I could not answer: “How can those who practise inequality protect equality?” A judiciary committed to the vision of the Constitution on social change will be a judiciary that will more effectively advance the constitutional vision of social change.
Equally, a judiciary that is expected to catalyse social change will need to reflect the diversity of our people. The selection of judges must therefore also ensure diversity and representativeness in a systematic manner.
The report of the U.K. Advisory Panel on Judicial Diversity, chaired by Baroness Neuberger, said in February 2010: “In a democratic society the judiciary should reflect the diversity of society and the legal profession as a whole. Judges drawn from a wide range of backgrounds and life experiences will bring varying perspectives to bear on critical legal issues. A judiciary which is visibly more reflective of society will enhance public confidence.” Many prominent jurists (such as Justice Sotomayer of the U.S. Supreme Court and Justice Lady Hale of the U.K. Supreme Court (both women judges)) have strongly and publicly endorsed the need for diversity in the judiciary.
The Supreme Court of India is diversity-challenged (although there has been a marked and welcome improvement in the representation of minority judges very recently—although it is far from clear whether the sustainability of this current trend is guaranteed). Like much of the rest of the judiciary, it is overwhelmingly Hindu upper caste (roughly 60 per cent of Supreme Court judges today; but the average representation of Hindu upper caste in the court tends to be higher—closer to 70 per cent) with currently no member of the Scheduled Castes, only two women, and very little representation of the Other Backward Classes (hardly 10 per cent).
Diversity is a socially forbidden topic in the higher echelons of power in all branches of the state—whether it is diversity of caste, religion, region or gender. Those who benefit from the current dispensation consider it retrograde to talk about such matters. They believe all decisions and considerations are rational and based on objective merit alone. Like other countries, the time has come to go beyond this “head in the sand” position and address the issue of diversity on the Bench in a constructive and reasonable manner.
Equal access to courts Second, common people cannot have equal access to courts as long as India continues with an exclusively private sector Bar. The right to counsel is now widely recognised as a basic human right. Yet, competent and diligent legal assistance has become scarce and expensive everywhere and unaffordable to the poor.
The absence of effective legal counsel is an important reason why common people are not able to access courts and use them as instruments of the constitutional vision of social change. Legal aid that pays low levels of fees to a private lawyer is not adequate to ensure that the poor have access to courts.
What is required is the establishment of a well-paid, salaried public cadre of well-trained young lawyers, engaged full time by the state as its employees, who will act on behalf of the indigent and the poor in civil and criminal matters for free.
A cadre of about 60,000 such lawyers nationwide (an average of 30 per court complex), paid an average of Rs.1 lakh a month as salary, can be established at a total cost of about Rs.7,200 crore. It will provide the poor a public legal service and also create professional avenues for young law graduates from socially excluded backgrounds to get opportunities to work as lawyers. The work of these lawyers will generate the material that will increase the flow of cases from common people to the Supreme Court.
Vested interests in the Bar who live off delay and adjournment will resist such an idea. But without free public services by a cadre of state-employed public defenders, common people will not have access to the courts, including the Supreme Court.
Regional Benches Third, the establishment of regional Benches of the Supreme Court is an idea about which judges have had reservations for valid reasons. However, judges need to weigh those disadvantages against realising the dream of the Constitution that the only new type of court it created, the Supreme Court, remains physically accessible to people in all parts of this vast country.
This is a crucial period in the history of the Supreme Court. The nation fully expects that the highest court in the country will live up to its own pronouncements and vision on the role of the judiciary in catalysing social change.
The 2007 global economic crisis has led to a softening of the earlier strong laissez-fairetrend. A greater recognition of the justice, social and environmental dimensions of economic development appears to be emerging. There is now renewed hope that the relationship between the Supreme Court and the aam aadmi can be strengthened again.
Prof. G. Mohan Gopal is former Director, National Judicial Academy, and former Vice-Chancellor, National Law School of India University, Bangalore.