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Crisis & Structural Change In Judiciary

Govind Manoharan
18 March 2020 2:27 PM GMT
Crisis & Structural Change In Judiciary

On 15th March, a high-level meeting was held at the Supreme Court of India between leaders of insider stakeholders (Judiciary, Advocates-on-Record Association, and Supreme Court Bar Association) and outside medical experts. This meeting was convened to discuss the way forward in the time of Covid-19. Notably, another important stakeholder the Supreme Court Bar Clerks' Association...

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On 15th March, a high-level meeting was held at the Supreme Court of India between leaders of insider stakeholders (Judiciary, Advocates-on-Record Association, and Supreme Court Bar Association) and outside medical experts. This meeting was convened to discuss the way forward in the time of Covid-19. Notably, another important stakeholder the Supreme Court Bar Clerks' Association went unrepresented at this meeting.  At this important meeting in these rather difficult times, the Supreme Court came up with a series of decisions to de-densify the court premises announcing a gradual shift towards virtual courts and e-filing.[1] At times of crisis such as the Covid-19 outbreak, it is necessary for such measures to be taken with humanism, scientific temper and long-term consequences in mind. While some decisions are 'band-aid'-like—for it is all that is possible in times of uncertainty—some of these changes are structural.

A positive response expected from the Bar is their self-equipping to deal with these structural changes regarding arguments from their offices, filing without the copious wastage of paper, and the efficient use of workhours to deal with on-going cases. All well and good, and one sincerely hopes that this communitarian sense of responsibility and duty will take us through these tough times. Crisis has done its work again, yet it only does so much of the work.

The unreliable promise of crisis

Thinkers have long bemoaned and some even welcomed the opportunity presented by crisis for structural change. When crisis hits, all actors are rather quick in acquiescing for large-scale structural change. Post the World Wars, Europe which (in the better part of the last millennium) upheld the legacy of its empires and the forced 'civilization' of their self-identified lesser counterparts in Asia, South America and Africa, embraced the value of life, and consequently, the international discourse of human rights was born. When the neo-liberal project faced the 2008 financial crisis, the world started looking seriously towards staggering inequality. Social Democracy, in its institutionally conservative form, made a resurgence in American political discourse. Crisis only presents an opportunity; however, the solutions we find cannot be piece-meal.

Many are familiar to crisis and the change it causes. Personal crises and structural changes within the family occurs often with the death or the birth of a family member. Engineered crisis such as the demonetization of 2016 may be employed in the service of transformational goals such as the removal of black money, move away from a cash-dependent culture etc., however hopeless these motives and outcomes may turn out to be. The debilitating effect of crisis then, is as potent as the opportunity it presents; some deaths leave the survivors broken for the better part of their remainder lives.

The unreliability of crisis as a vehicle for substantive change is then writ large in our experiences—personal, social, economic and political. Then why wait for one? The experimentalism in innovation after crisis and the energy employed to carry it through to structural change ought to be the constant state of actors within a social system. With this, lets come back to the Indian Supreme Court.

Is there an appropriate time for structural change?

About 15 years ago, the E-Committee of the Supreme Court of India devised a policy entitled 'The National Policy and Action for Implementation of Information and Communication Technology in the Indian Judiciary'.[2] Imagined in three phases (of 1 year, 2 year and 1 year respectively), the policy outlined structural changes using ICT to smoothen the justice-delivery system, hindered in its implementation only by the lack of "personal initiative and involvement for bringing about a change" from "judicial officers and court staff." Lawyers were also part of the problem who, at times, were eve not ready for e-cause-lists as it required a change in mindset as late as 2013 in Karnataka.[3] Of course, the e-filing policy was announced during the tenure of the then CJI, Justice Dipak Mishra (a time which now seems far past), but has largely remained voluntary in its execution. Scores of paper-books printed on single side had killed enough trees[4] before the Supreme Court earlier this month agreed to using smaller A-4 size sheets with double side prints for paper-books.[5] In court-rooms already equipped with computer screens, one wonders how snail-paced gradual change ought to be. The crisis presented by the Covid-19 disease has in turn certainly sped things up.

What lessons can we look for while sitting back in our offices/homes thinking about matters other than how to fashion a non-urgent matter into an urgent one to get listed before the limited-access court? No final words here, only the beginnings of the first few.

What do we do about special leave petitions and "identity crisis" of the Supreme Court? Recently, Prof. Khaitan has through meticulous empirical research demonstrated this crisis; of a poorly performing constitutional court weighed down by its staggering appellate docket.[6] The recommendation in this recent paper is to bifurcate the constitutional court and the appellate court and create zonal appeal courts. A big stakeholder here is, of course, the Advocates particularly, the Advocates-on-Record who rely on regional channels to feed their work profile in New Delhi—for instance, Kerala lawyers largely do appeals from Ernakulam, lawyers belonging to Tamil Nadu from Madras or Madurai benches etc. In these days of abusive constitutionalism[7] practiced by the Centre, and constant let-downs by constitutional courts, the band-aid of being consumed by the nostalgia of better constitutional weathers and visions is the urge we must resist. Instead, think seriously about alternatives to dominant approaches.

More structural issues have long been identified.[8] Prof. Khaitan points to another in the reigning in of senior advocates and their role in contributing to accumulation on the appellate docket. A few years ago, I unsuccessfully decried the creeping impact of mental health illnesses in the legal profession and its denial[9] eliciting some fervent speeches by present[10] and future[11] Chief Justices, followed up with no real action. A lesson from these Covid days may be prescient—masks have no effect if worn by the unaffected.

Structural problems require structural solutions. What crisis are we waiting for next?

--Govind Manoharan is an advocate at the Supreme Court of India on a break from practice to pursue his Masters at Harvard Law School.

[7] David Landau, Abusive Constitutionalism, 47 U.C.D. L. Rev. 189 (2013).


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