'Judiciary still the most trusted wing'

CAMBRIDGE, MAY 8. The Union Law Minister, Mr. Ram Jethmalani, asserted at a symposium at the Harvard Law School that the purpose of the review of the Constitution now being undertaken was not to whittle down any of the rights but only to expand them. Different aspects of the right to work, the right to education and the right to property could be examined so that constitutional protection could be enlarged, he said, mounting a strong defence of the constitutional review.

He was speaking at the symposium on ``Human Rights and the Indian Judiciary's Constitutional Jurisprudence'' organised by the Harvard University Indian Human Rights Group in close collaboration with the Harvard Law School Human Rights Program on April 15. The speakers included Prof. Granville Austin, Prof. Marc Galanter, Mr. V. R. Krishna Iyer, former judge of the Supreme Court, Mr. Soli Sorabjee, Attorney-General, Mr. N. Ravi, Ms. Naina Kapur, Prof. M. P. Singh, Prof. B. B. Pande, Ms. Indira Jaising and Ms. Smita Narula.

The first panel on Constitutionalism, Constitutional Justice & Human Rights laid down some of the basic concepts of the Indian Constitution and constitutional jurisprudence in a critical manner, according to a report by C. Raj Kumar and Pratibha Jain, LL.M. Candidates at the Harvard Law School. Professor Austin situated India's constitutional jurisprudence on human rights into a compelling historical framework, beginning with the inherent radicalism of the Indian Constitution that is evidenced by its inclusion of universal suffrage, Fundamental Rights, explicit social and economic commitments as embodied in the Directive Principles, and dedication to the protection and advancement of minorities. He argued, that the role of the Supreme Court in this history had focussed on two struggles with the legislature.

First, the country had struggled to find the appropriate role for the Fundamental Rights in the context of the social revolution - to what degree was the Court to have a role in balancing the social and economic goals of the government with the Fundamental Rights protected in the Constitution. Second, India had struggled to define who had ultimate custody over the Constitution itself. Though Nehru believed deeply in the importance of a strong Court, Indira Gandhi's amendments and actions during Emergency demonstrated overt contempt of the Court's role in the machinery of government. Ultimately, Professor Austin suggested that concentrating on these two struggles might suggest that the key to safeguarding individual liberty and securing economic development lies with the Court.

Professor Marc Galanter moved the discussion from its focus on the Supreme Court to the challenges facing India's lower judiciary, the ordinary district and sub-district courts where most of the population has its contact with the judicial system. He painted a bleak picture of a lower court system locked in a spiral of ineffectiveness, infested with extreme delay and inefficiency, and hampered by a capacity to offer any real remedies to the problems presented by ordinary citizens. Indeed, the generally negative perception among the Indian people of the courts and bar seems to be borne out in practice; the sad truth is that many Indians forego access to the courts not because of ignorance of their legal rights, but because they know only too well that the courts will be unable to provide them meaningful redress. Consequently, the Indians are among the least litigious people in the world, having turned away from the court since Independence. The single greatest opportunity for reform would be to develop tort law, an area that the legislature has left to the slow pace of common law evolution for development.

Justice Krishna Iyer began with a deep criticism of the Supreme Court's early constitutional jurisprudence, asserting that it reflected an interpretation divorced from the social and economic realities of the country and rejected it as symptomatic of a colonial mentality entirely insensitive to the spirit of the framers. The Emergency decisions were natural outcomes of this impotence that confirmed the ineffectiveness of the Supreme Court on human rights matters. The post-Emergency jurisprudence, however, had been a extraordinary triumph of the Indian Supreme Court. Today, the Court had awakened to its responsibility to protect human rights: from taking action on public corruption that has made corrupt officials frightened to developing a prison jurisprudence.

Justice Iyer pointed to two unique characteristics of the Indian judiciary in this regard. First, the Supreme Court and state High Courts were prepared to bypass the adversarial system and to unilaterally investigate abuses that were brought to their attention, usually through letters written by citizens. This practice resulted in some important decisions (Sunil Batra II, for example). Second, the Court had modified its standing rules to allow PIL where parties could bring actions on behalf of victims of abuses. Much work remained to be done and the Court's recent jurisprudence was a sign of hope.

In the second panel on Human Rights: Judicial Enforcement, Institutions & Attitudes - Comparative and International Perspectives, the discussion focused on the court's role in promoting human rights through an examination of some specific issues: Public Interest Litigation, the court's role in situations of sustained crisis, the place of the court in the separation of powers and a look at the perception of the court in the Indian society.

Mr. Soli Sorabjee argued that the main hurdle for access to justice in India was a restrictive doctrine of locus standi.Ms. Naina Kapur argued the human rights debate from a gender justice perspective. She argued that it was necessary to get away from the idea that the Supreme Court was the only place in which the Constitution can function. It was very hard for women to secure their rights while going through the mainstream courts. Very often the courts had acquitted rapists and judges had given reasons such as women lie or that rape did not happen in Indian culture. This showed that judges did not know how to deal with cases of sexual harassment against women. Presenting a powerful and persuasive critique of the judiciary's role in promoting women's rights, she said that it was necessary to differentiate between theory and practice. Sakshi (an NGO of which Naina Kapur is Director) conducted a survey on how the SC perceived women. The survey revealed that judges were not educated about gender equality. 74% of the judges interviewed had not heard about the Convention on Discrimination Against Women. 90% of the judges said they would not refer their daughters to the criminal justice system. Judges said that preservation of family should be ensured at all costs even in cases of domestic violence. They also believed that child sexual abuse was not common. Many further believed that provocative clothing was one of the primary causes of sexual abuse.

Mr. N. Ravi presented a view of the judiciary from outside the system and confined his presentation with reference to the higher judiciary and not to the lower courts. The judiciary in India enjoyed a much higher degree of trust than other branches of government. Despite delays, decisions in most cases in India are reached at the preliminary stage with interim orders including decisions on substantive issues. Compared with civil and criminal cases, on public interest litigation, higher courts moved fairly fast.

It was quite apparent from newspapers and public debates that there is very little criticism of the higher judiciary. He highlighted the reasons for this trust in the judiciary: 1. The judiciary has been upholding the concerns of the poor. With the change in the agenda of the court in the 1980s, it has given priority to cases involving the rights of prisoners, bonded labour, women and children. Thus, the courts are seen as helping the poor and disadvantaged against abuse of power; 2. Courts became more assertive after the Emergency. During the Emergency, the Supreme Court even consented that right to life could be suspended. This is in sharp contrast to the Menaka Gandhi case where the court held that only a fair and just procedure was past judicial scrutiny. From then on, courts took on a wide range of public interest works; 3. The people see the judiciary as their only hope, because of the incompetence of the legislature and executive. The almost instinctive demand for judicial inquiries into incidents in dispute comes up only because judges are believed to be able to bring out the facts impartially.

The people's trust in the judiciary and the court's role in helping the poor and disadvantaged did not imply that the road had been all smooth. The court upheld the Armed Forces Act and the Terrorism Act, despite their draconian provisions. These instances revealed that the court had shown, undue deference to the judgment of executives in cases where national security concerns had been invoked. Overall, however, the judiciary had put some fear in the minds of the administration.

Justice Krishna Iyer, speaking in the second session, reminded that judges are humans and have the same flaws, frailties and vices of ordinary people. He emphasised that Constitutional lawyering was absolutely necessary in India, but lamented that there was no such training in India. The legal profession was ill equipped to deal with this vast development of human rights.

The Third Panel, Equality, Discrimination & Judicial Remedies - Constitutional Perspectives, focussed on specific issues, all of which will have been raised in varying degrees by other speakers. Professor M. P. Singh spoke on the affirmative action programme under the Constitution.

Ms. Indira Jaising began her arguments by saying that decision making was no longer made by Parliament, but in the halls of the WTO, where Parliament changed the laws to fit the WTO. The issue, according to her was whether the treaty making power should be checked by Parliament.

Professor B. B. Pande said that the courts at lower levels were crucial as they implemented the child labour law and the bonded labour law.

Ms. Smita Narula spoke of the conditions of Dalits who still suffered segregation in schools by being made to sit in the back and could not use common utensils in public spaces because they were considered polluting. The mindset of discrimination was pervasive even after the Constitution abolished untouchability.

Earlier, Professor Robert C. Clark, Dean of the Harvard Law School who congratulated the Harvard University Indian Human Rights Group on having organised this symposium on a vitally important theme, inaugurated the symposium. The introductory remarks of Professor Henry J. Steiner, Director of the Harvard Law School Human Rights Program and Dean Clark's address paid rich tributes to the significant contribution of the Indian Supreme Court to international jurisprudence. Professors Frank Michelman, Anne-Marie Slaughter & John Mansfield of the Harvard Law School chaired the three sessions. Mr. peter Rosenblum, Associate Director of the Harvard Law School Human Rights Programme made the concluding remarks.

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