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‘More Diversity In Judiciary Will Ensure More Neutrality’: Advocate Shahrukh Alam

Awstika Das
28 Jan 2023 5:58 AM GMT
‘More Diversity In Judiciary Will Ensure More Neutrality’: Advocate Shahrukh Alam

Weighing in on the issue of diversity in the Indian judiciary, Supreme Court lawyer-cum-activist Shahrukh Alam said that by bringing in more people from the margins of society to occupy seats of power in the courts, the elements of subjective assessment that inform the process of adjudication would be more neutral. “Apart from judicial reasoning, which is only a part of the process, there is a lot of subjective assessment. In my work, I have seen how judges respond to hate speech or inciteful speech, for instance. Where there is familiarity with the maker of the hate speech, there is a greater degree of indulgence among the police, lower judiciary, and sometimes, even the higher judiciary because there is no fear or suspicion. On the other hand, the same people are likely to be unnerved by someone making similar speeches if there is no familiarity,” Alam explained, alluding to the impact on the judicial outcome of cognitive biases of judges that are tied to their own beliefs and identities. “If we had more diversity, I think some of these notions of subjective assessments that creep in would be more neutral.”

Alam was invited as a guest at a parliamentary briefing on Wednesday on the topic ‘Taking stock of constitutional rights protection in India’ ahead of the Indian Republic Day celebrated on January 26. This virtual event was organised by The London Story, a think-tank run by the Indian diaspora in the European Union. Also in attendance were Finnish Green League politician and member of the European Parliament, Alviina Alametsä, Senior Advocate Anand Grover, and Advocate Prashant Bhushan.

On being asked about the parameters on which judicial appointments should be made, the independent practitioner said, “The right choice is somebody who has a sense of political and social power, and somebody who is more well-versed in literature, and well-versed in general. I do not think it is enough to just be very good at black-letter law.” She added, “I would encourage diversity and I would try and find ways to bring in more people from the margins into the centre.”

Alam also claimed that Indian courts were increasingly adjudicating cases through the prism of ‘national security’, ‘national interest’, and law and order, “rather than on the case's own termsand “they are doing so without sufficient thought as to what constitutes ‘national security’”. She explained, “We have always had a highly stratified society and polity, with some people at the centre, and others who have historically been on the margins in terms of caste, class, and region. And then there are people, particularly the Muslims, the indigenous people, and the members of the LGBTQ community, who have always been considered outsiders to our nation, our culture, our traditions.” Therefore, according to the lawyer, the idea of national interest, which is increasingly forming the basis of judicial decisions, is skewed and “our courts are not conscious of the fact that that a number of people remain outside of what is thought to constitute the nation and its interests”. To illustrate, she referred to the nationwide controversy that erupted after the Karnataka government allowed government schools and colleges to ban the hijab and the judicial response to the contentious government order. “This is one of the oddest examples of national security and law and order concerns having a primary bearing on a case. Even when the hijab-wearing students pleaded that on a balance of interests, they should be allowed to attend class and write exams during the pendency of the case, interim relief was refused by this court. Essentially acknowledging the precedence of the hecklers’ veto over people’s rights, the state said that such relief would cause ‘law and order’ problems. And the court accepted this argument. This is the prism of national security I am talking about.”

Alam also argued that there had been a normative shift in the language of the law, and consequently in the logic of the courts. “One obvious way to frame this is in terms of bias, but I think language is much more insidious. It changes the way one frames a problem. You start to think differently about things without being overtly biased.” An example of this, she said, was the way the language employed in the police complaints and the judicial documents ended up ‘reconfiguring the citizenship status’ during the public furore over the Citizenship (Amendment) Act, which is what the act that was the focus of the protests, set out to do in the first place. “There was an infamous criminal complaint, that is, the first information report 59 of 2020. This report said that speeches were given that encouraged people to protest in the streets and to internationally further the propaganda that minorities were being oppressed in India. Now, even if it were political propaganda, it would still not be an offence. But suddenly this language, which has now entered the logic of our courts, has put people in jail. Take another example. The court said that the accused inconvenienced commuters and embarrassed the government, besides providing Muslims with an articulation of their grievances and creating a Muslim critical mass. So, this language now has criminalised political articulations and political mobilisation.”

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