Justice Dhananjaya Y. Chandrachud, Hon. Chief Justice of India at the Hindustan Times Leadership Summit, in New Delhi, India, on Saturday, November 12th, 2022 said social media platforms were posing one of the biggest challenges for judges, who, he added, must “re-engineer and refashion” themselves to adapt suitably. He spoke at length about women representation and role of women in the judiciary as he shared his views on the question: “Why don’t we have more women and people from the marginalised communities in the judiciary?” The Chief Justice was making the comments as he addressed the 20th edition of the Hindustan Times Leadership Summit 2022.
Indian Courts And Major Criticism
We are very often posed with questions as to why do different judges speak with different voices particularly in the Supreme Court, why can’t these guys agree on one set line of approach, why is it that in very crucial cases there are multiple voices speaking from within the same court, why do you have to deal with whether or not to grant bail to somebody who has stolen luxury cars or maybe cycles or who is in possession of five kilograms of opium, why should you be really opening yourself up to deciding these cases or sometimes asked why is it when we look at the dice on the benches of our courts that you see more men than women, that’s the issue of diversity.The principle which the constitution adopted in the terms of the adjudicative power of Supreme Court is of a very broad sense of access to justice . So when the constitution was designed, the constitutional structure was to create a court which would be broad based in opening its doors for providing access to citizens. Now we have widen access to a point where some believe that we are increasingly becoming dysfunctional because we have so many coming into our courts. One way of looking at it is we’ve broadened access to such a large extent that you are increasingly rendering yourself dysfunctional . The other way of looking at it is that it reflects the strength of our judicial system because this is a court where anybody from A-Z can come to the court and make a cry for personal liberty, with the expectation that personal liberty would be protected. When you compare our courts, say with the US Supreme Court which would hear about 180 cases in an year, or the UK Supreme Court which would here 85 cases a year ,we have a Supreme Court which would roughly, every judge of Supreme Court would be reading between 75-80 cases every Monday; 75-80 cases every Friday and then on Tuesday Wednesday and Thursday on an average 30-40 cases, so that gives you the reach of the work which the Supreme Court does.
The CJI clarified that the Indian model of Judiciary was one which shifted from being colonial to independent; it is based on the absolute concept of ‘ACCESS TO JUSTICE’. The Indian Judicial system opens its doors to each and every citizen. In the eyes of the Apex Court, no case is too big or small.
Challenges Faced by Judiciary in Today’s Time
The first challenge faced is the challenge of expectations. Almost every case, every social, legal and political issues comes into the lap within the adjudicatory jurisdiction of the Supreme Court. The reasons for that are numerous. Very often the government is the largest litigant for the reason that we have over the last 70 years culture of indecision. There is also a culture of distrust which leads many of our top decision makers to be very careful about taking decisions. So variety of reason in the Indian content have led to a culture of distress and therefore a culture of indecision on the part of public functionaries. Now all those cases are therefore referred to the court. We’d rather have the court decide rather that us taking a decision. This is one of the reason why the courts have a large backlog of cases.
For instance when dealing with Armed Forces Permanent Commission Issue, the Navy told us that there’s one critical reason why they can’t have women in the navy which is that our Russian warships have no facility for a separate toilet for women. It was held that it is bad enough but no reason to deny entry to women. So this increased people’s expectations in the court which led to the proliferation of litigation. This is also a great challenge to the judge if they are capable of handling all the issues which goes to them.
The other reason apart from the culture of distress is possibly more optimistic, which is a culture of faith that “something will happen in my favour in the court”.
Role of Social Media in Indian Judiciary
Now social media has posed one of the greatest challenges of our times. The CJI continued “None of us judges today where trained as lawyers or law student in the era of the social media”. What has happened with social media is this real time reporting of every word that the judge says in court. There is a free flowing dialogue between the lawyers in the court or between the judges-between themselves in an effort to unravel the truth or shades of the truth which comes up for decision making.
The real time reporting in the court rooms today by the second, every word that the judges says is put out on Twitter, Telegram or Instagram and there is a constant evaluation of judges. Now if you have judges who then decides to keep quiet and not say things when arguments are going on, that would pose a very great danger to the process of judicial decision making. Because the ability of a lawyer to meet an argument to answer the concern of the judge and to explore the mind of the judge or the line of reasoning of the judge is critical to the work which they do in courts. Now social media has challenged that assumption. The CJI commented “We need to fashion and re-engineer ourselves as judges. We need to refashion ourselves, find new solutions, retrain ourselves, recoup ourselves, rethink our role in trying to understand how we meet the challenges of the age in which we live”.
Impact of Technology
When the covid 19 pandemic descended in the march of 2020 we had two options, we couldn’t function in the physical sense and the only other option was to shutdown the courts. You can shutdown may be a factory but you cannot shut down access to justice. So we had in place a robust infrastructure of technology and we used the onscreen facilities. Despite being in a country where access to internet is not uniform, our effort at live streaming and at using the video conferencing platforms really gave us a new insight into what technology can do to transform our legal system.
What technology really did for the judges was to enable them to understand that technology has a huge potential to change the way they have traditionally worked as judges. The colonial design of our democratic institutions can no longer hold good today, 75 years down independence and since the birth of the constitution. What technology has done is to enable us to replace the traditional model where citizens had to reach out to justice. Our judgements are written in English particularly in the superior judiciary but surely citizens for whom our judgements are meant don’t necessarily know or speak English. Unless a citizen in any part of the country is able to understand what was said in that judgement concerning her or a judgement concerning someone else, a sense of confidence in the judicial process would not be perpetuated because the ability of our courts to thrive as a judicial institution in our democracy lies in the confidence which is generated in the minds of people.
Live streaming is important because as said in one of the judgements “Sunlight is the best disinfectant and one of the greatest dangers to institutions in a constitutional democracy is the danger of being opaque”. When you open up a process it generate a degree of accountability, transparency and responsiveness to the needs of citizens. Speaking about live streaming, it is not about the big ticket cases which the SC decides, but of the District Judiciary. Because the interface of the common citizen is first and foremost with the District Judiciary. The citizens are entitled to how and have knowledge of the kind of application that goes on in the judicial functioning.
There are obviously concerns about the live streaming. One of which is that if it leads to grand standing by lawyers, Will lawyers be more inclined to speak to the gallery instead of off to the judge. Well, everything including technology has a flip side. For instance when we use AI to predict judicial outcomes, AI is not gender or ideology neutral it’s upon who has programmed it and there is a grave danger if it’s used beyond it’s circumscribed jurisdiction affecting the stereotypes which are inherent in the system against women, marginalised and backward casts. Live streaming has a great potential which is to allow citizens to open themselves upto access to justice by truly understanding what goes on behind the closed doors of courts.
Feminism and Indian Judiciary
One great impact of the pandemic when we video conferenced all hearings was a tremendous increase in the woman lawyers who started appearing before the courts. What Live streaming did was it allowed woman to be productive in the work which they do and the number of woman lawyers who have been appearing before court increased and is one of the benefits we were able to gather in terms of the use of technology which led to the broader aspect of diversity within the judiciary.
“Feeding pool for the Supreme Court is the high courts or lawyers from the bar. Feeding pool for the high courts is the district judiciary or lawyers who practice before the high courts,” the Chief Justice elaborated. “The feeding pool which determines who enters judiciary is largely dependent on the structure of the legal profession, which is feudal, patriarchal and has not been accommodating of women,” he further added.
Sharing his experience of working with a female colleague – Justice Ranjana Desai – Chief Justice DY Chandrachud further shared: “There is a certain perspective they bring to the judiciary. There is something intrinsic about gender which adds to decision making irrespective of the outcome that you arrive at in an individual case, they bring to the case, a more deliberative, consultative and dialogic process to the art and science of judging.”
He made the remarks as he was speaking about the need to take a “very hard look of how we conceive of merit and how we think of diversity”. The infrastructural issues faced by the courts also affects women. “Infrastructural needs of the judiciary need to be answered. Some courts in our country have no toilet for women,” the Chief Justice pointed out.
The honourable CJI concluded by saying that he think our judges are doing a fantastic job considering them working under these stark realities and all critiques of the court present an effort for them to refashion and re-engineer and to devise new ways of doing old habits.
