Monday, June 5, 2023

Reforms & Research: The Way Forward

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Justice Deepak Gupta said that for real justice, the scales of justice should be weighted in favour of the poor. This requires fresh ideas on legal reform, for which freedom to question judges is a sine qua non.

By Prof G Mohan Gopal

On May 6, 2020, Supreme Court Justice Deepak Gupta was in the headlines across the country for a stirring farewell message on his retirement: “Laws and… the legal system are totally geared in favour of the rich and powerful…in this battle between the rich and powerful on one side and the voiceless, poor and downtrodden on the other, the scales of justice can never be balanced equally…. If real justice has to be done then scales of justice have to be weighted in favour of the underprivileged… balanced in such a way that the poor and the underprivileged are not denied justice.”

Beyond his stature as a judge, Justice Gupta’s critique of the legal system has resonated deeply with people on the street as well as with many in the legal and judicial establishment. This is not unexpected. He is, deservedly, one of the most loved and respected members of the fraternity.

However, not all critiques of the legal system have been received with the same warmth. Fifty-three years ago, Marxist leader EMS Namboodiripad, then chief minister of Kerala, had raised a concern similar to Justice Gupta’s in a press conference on November 9, 1967. Namboodiripad said: “Where the evidence is balanced between a well-dressed, pot-bellied rich man and a poor ill-dressed and illiterate person, the judge instinctively favours the former.”

EMS argued that “Marx and Engels considered the judiciary as an instrument of oppression and even today, when the State set-up has not undergone any change, it continues to be…that the judiciary is part of the class rule of the ruling classes.… The judiciary is weighted against…workers, peasants and other sections of the working classes and the law and the system of judiciary essentially serve the exploiting classes. Even where the judiciary is separated from the executive it is still subject to the influence and pressure of the executive”. He added: “The judge is subject to his own idiosyncrasies and prejudices…guided by individual idiosyncrasies, guided and dominated by class interests, class hatred, and class prejudices.”

EMS’s critique of the legal system was not as well received by the legal establishment as Justice Gupta’s critique has been. He was promptly prosecuted and convicted in 1968 for criminal contempt of court by a 2-1 majority of a three-judge bench of the Kerala High Court (the venerable and wise Justice KK Mathew, expectedly, dissenting). EMS appealed to the Supreme Court.

In a scathing judgment in 1970, the Supreme Court, speaking through then Chief Justice Mohammad Hidayatullah, rejected EMS’s appeal and said: “To charge the judiciary as an instrument of oppression, the judge as guided and dominated by class hatred, class interests and class prejudices, instinctively favouring the rich against the poor is to draw a very distorted and poor picture of the judiciary. It is clear that it is an attack upon judges which is calculated to raise in the minds of the people a general dissatisfaction with, and distrust of all judicial decisions. It weakens the authority of law and law courts.…[J]udges are as human as others. But judges do not consciously take a view against the conscience or their oaths. What the appellant [Mr. Nam­boodiripad] wishes to say is that they do. In this he has been guilty of a great calumny.” 

The judgment concluded by pouring scorn on EMS: “The ends of justice in this case are amply served by exposing the appellant’s ignorance about the true teachings of Marx and Engels (behind whom he shelters) and by sentencing him to a nominal fine.”

One may fault EMS for his casteism, but surely not for his Marxism—he was after all one of India’s most renowned experts on Marxism!

The stark difference between the positive reaction of the legal fraternity to Justice Gupta’s criticism which refrained from singling out the judiciary for accusation and the ferocious rejection of EMS’s critique which, in the words of the Supreme Court, “attacked the judiciary directly”, tells us that questioning judges is “off limits” in legal reform in India. The problem is that it is not possible to have the kind of reform called for by Justice Gupta (e.g., “scales of justice have to be weighted in favour of the underprivileged”) without a thorough and open public discourse about judges, their social and economic bias and prejudice, if any, how they interpret law and the judicial process they follow.

This was the kind of public debate EMS sought to initiate 50 years ago, in all probability reaching back a further half-century to the writings of US Supreme Court Justice Benjamin Cardozo who (when he was a judge of the New York Court of Appeals) said in a celebrated 1921 lecture, “The Nature of the Judicial Process”: “There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals….We [i.e., judges] may try to see things as objectively as we please. Nonetheless, we can never see them with any eyes except our own.” 

Chief Justice Hidayatullah rejected Justice Cardozo’s views which were specifically brought to his attention by EMS’s legendary counsel, VK Krishna Menon. On the contrary, the chief justice asserted that “judges do not consciously take a view against the conscience or their oaths”. In doing so, he was merely restating a self-serving but untested superstition about judges, unsupported by systematic research or evidence about what judges actually do in our country.

One of the most important obstacles to improving the legal system in India is the fear that independent research and critical public discourse on Indian courts and judges will result in prosecution and punishment for contempt of court for “scandalising judges”. If contempt laws on scandalising judges cannot be totally abolished (as they should be), at the very least, the law should be clarified such that bona fide analysis, discourse and ideas for systemic reform of the legal system, including on the work of  judges, are placed outside the scope of contempt of court. Judges should deal with any issues they have emerging from such research and discourse through ordinary defamation law as their contemporaries in other countries do.

If instead of insulting and punishing him for questioning the judicial system half a century ago, had Chief Justice Hidayatullah (and his distinguished colleagues on the bench, Justice AN Ray [later chief justice of India] and Justice GK Mitter) engaged EMS in a serious discussion on how to make the Indian justice system more accessible to the powerless and developed and implemented a suitable agenda for reform, the Indian legal system would have been much stronger today. And Justice Deepak Gupta could have concluded his judicial career on a happier note.

Fifty years later, Justice Gupta’s message must give us reason to pause and ask ourselves, what did the Supreme Court achieve by punishing EMS in 1970 instead of hearing out his concerns? Going forward, what can the Supreme Court do over the next 50 years in response to Justice Gupta’s message?

At the very least, a first step could be that the Supreme Court appoints a task force headed by Justice Gupta to develop and lead solutions to make the Indian legal system fair to the powerless and the marginalised.

—The writer was former Director, National Judicial Academy and former VC, National Law School of India, Bengaluru

Lead picture; Anil Shakya

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