A report that appeared in The New York Times in 1964 had a long and provocative title which reflected the judicial reality in the US at that point of time. It read: “Equal justice for the poor, too; far too often, money—or the lack of it—can be the deciding factor in the court room, says justice Goldberg, who calls for a programme to ensure justice for all Americans.” i The current situation is not qualitatively or quantitatively better. A 2014 report said: “A Reuters examination of nine years of cases shows that 66 of the 17,000 lawyers who petitioned the Supreme Court succeeded at getting their clients’ appeals heard at a remarkable rate.” ii These lawyers, according to the report, are “the elite of the elite” who constituted less than 1 per cent of the lawyers, and yet had domain over the major chunk of cases. The study added that “of the 66 most successful lawyers, 51 worked for law firms that primarily represented corporate interests.’’ iii
The legal plutocracy in a capitalist society is not at all unusual, and India is no exception. But we have differences. The Preamble and the Directive Principles of State Policy of the Constitution has a socialist inclination in its text. Article 39A particularly says that “the State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid’’ to the needy. India’s political history had the traits of Nehruvian socialism and other brands of socialism. This stream of political praxis had its resonance in Social Action Litigation (SAL), inaccurately termed Public Interest Litigation (PIL), in the 1980s.
Owing to various reasons, historical, political, and constitutional, the Indian apex court did not suffer the predicament of the US Supreme Court. Nevertheless, of late, the question of inequality in the matter of access to justice has started to pose serious questions. Nick Robinson, in his Frontline article, opined that the Supreme Court of India “disproportionately spends thousands of hours hearing the cases of wealthier litigants situated in and around Delhi and from more affluent states.” iv He added that “on a typical day, the (Supreme) Court is far more likely to be found spending its time discussing the intricacies of tax law than intervening on behalf of the poor or the marginalised.” v
The situation indicated by Robinson has worsened since then. The SAL movement suffered a setback after casual and frequent attempts to invoke the court’s jurisdiction often impacted its respectability and even legitimacy. Politics in the country shifted away from the idea of socialism. Often, high-profile cases decided by the Supreme Court involved wealthy stakeholders, with only a few exceptions.
Question of access
Access to justice is an indispensable part of the Rule of Law which is considered a basic feature of the Constitution. In Anita Kushwaha v. Pushap Sudan (2016), a Constitution Bench reiterated that access to justice is a fundamental right under part III of the Constitution. The four facets of ‘access’, according to the court, are (i) the need for adjudicatory mechanism, (ii) its accessibility in terms of distance, (iii) promptness of the mechanism, and (iv) its affordability to litigants.
The notion of access to justice has multiple dimensions. It also involves the issue of lack of adequate representation for the downtrodden and the marginalised in the system. India’s legal profession is essentially led by the elites, with few Dalits and minorities represented in the profession’s creamy layer. This is true of the Bench too.
The question, therefore, of access poses immense additional challenges to the marginalised, whether Dalits, linguistic/sexual minorities, sex workers, the physically challenged, street vendors, beggars, nomads, ragpickers, the elderly, the sick, and so on. Thus, “the poor” assumes multiple connotations in the context of access to justice. It is not mere deprivation of money, though it might be a major component of poverty. Legal scholar Deborah Rhode wrote: “Many factors affect the justness of the legal process apart from the adequacy of legal assistance: the substance of legal rights and remedies; the structure of legal processes; the attitudes of judges and court personnel; and the resources, expertise, and incentives of the parties. On almost all of those dimensions, as law professor Marc Galanter famously put it, the “‘haves’ come out ahead”. vi In a country where the people are alienated from courts even at the grass roots level, the gap between the top court and the poor is understandably huge.
One does not expect free access to the Supreme Court for every litigant or every cause. Nor can one say that every error committed by High Courts has to be rectified by the Supreme Court. But there needs to be an inherently fair and egalitarian system that can maintain the notion of distributive justice. The point is to ensure a functional narrative for Article 14 within the Supreme Court, and to ensure “equality before the law” and “equal protection of the laws” to everyone. The point is also to find a demonstrable institutional version for Article 21 that promises dignified life and legally established legal procedure to all. This needs vision and strategy, in tune with the ideas of a socialist jurisprudence that the country lost somewhere down the years.
Negation of equality and legal profession
An unfortunate truth is that the system negates the very idea of equality even within the legal profession. It is high time one revisited the hierarchy in the profession created and perpetuated by the institution itself. Section 16(2) of the Advocates Act contemplated Senior Designation as a measure of recognising and honouring the most meritorious from the Bar. Often, it failed to achieve this goal. The tragedy is that this device not only divides the fraternity into unequal fractions but also facilitates exploitation of litigants by the stardom often irrationally attached to a few ‘elite’ lawyers.
Jurist Fali. S. Nariman lamented that the system of senior designation had introduced a kind of “caste system” in the judiciary, clearly violating the equality clauses contained in Article 14 vii. A petition before the apex court by lawyer Indira Jaising challenged the method and parameters adopted for effecting designation. In a connected case titled National Lawyers Campaign for Judicial Transparency and Reforms v. Bar Council of India (2017), the constitutional validity of Section 16 of the Advocates Act and Rule 2 of Order IV of the Supreme Court Rules, 2013, on the subject were challenged as discriminatory. The Supreme court, in these cases, only issued guidelines for the purpose of designation without striking down the legal provisions that envisaged the classification. viii Thus, the court effectively perpetuated a system that is inherently unequal and essentially unconstitutional. There are reasons to think that this can, in its own way, accelerate the elitism in the institution that moves closer to that in the US. ix
The existence of this device has had an adverse impact on litigants and on the institution in the long run. Elitism does not end with the choice of lawyers. It spreads across the system, which ultimately creates a legal aristocracy that is clearly beyond the reach or imagination of the poor and a large share of the populace. This writer has elsewhere tried to demonstrate that litigants are denied the right to fair advocacy on account of the blatant commercialisation of the legal profession actively encouraged by the institution. x
It requires constant vigilance to ensure access to justice not only for the poor and the marginalised but also for ordinary lawyers who are prepared to take up the causes at affordable terms or even pro bono. This needs a cultural shift and radical change in ethical priorities and in the attitude of the institution and those who run it. This is also a matter of judicial ideology. The Bar needs to speak up in this regard and the Bar needs to introspect.
E-court as a possibility
Nick Robinson, in his articlexi, indicated two significant hurdles for citizens trying to reach the Supreme Court. One is geographic and the other economic. They are, in certain ways, interconnected. For long years, hardly any conscious attempt was made to tackle this issue. However, partly due to the compulsions of the COVID-19 pandemic, the Supreme Court had to go online. Under the chairmanship of Justice D.Y. Chandrachud, the e-committee of the apex court has done a commendable job of setting up an e-court system for the whole country which, particularly, has tried to convert the Supreme Court of Delhi to the Supreme Court of India in the real sense. Thousands of ordinary lawyers across the country, representing “ordinary” litigants, could present their case before the top court. This device, if carried forward effectively, could radically alter the scenario that Robinson indicated.
The online court could be a sensible and significant solution to the issue of access, not only to the Supreme Court but to courts across the country. An effective stabilisation of the online court system could even make the prevailing demand for four appellate courts installed over the High Courts at four major metro cities redundant. Technologically, as Richard Susskind has shown, online courts are here to stay and the future belongs to them, as they can displace a substantial portion of the traditional litigative process xii.
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The Parliamentary Committee’s 103rd report (September 2020) on “functioning of virtual courts/court proceedings through video conferencing” can help evolve a road map. It considers questions of ‘’digital divide’’ / “skill divide” and technological deficits such as poor digital connectivity. The need to maintain openness of proceedings in the online court is also technologically possible. The committee urged for adequate infrastructural support to the judiciary while expressing unhappiness over the snail’s pace at which digitalisation happens, but Paragraph 3.9 of the interim report contains a note of optimism: “The Committee believes that Virtual Courts can better promote the principle of Distributive Justice. Distributive Justice requires that Court services should be accessible to all and that the service should be affordable by all. No member of the general public should be disadvantaged by locational or economic handicaps or otherwise. The Committee is of the opinion that Digital Justice is cheaper and faster. People living in remote and far-flung areas can also take part in Court proceedings through videoconferencing without having to spend a fortune to set foot in the Courtroom.”
In Swapnil Tripathi v. Supreme Court of India (2018), the apex court has acknowledged the merit of digitalisation and even pleaded for livestreaming of proceedings in certain cases. But a paradigm shift can happen only when the institution overcomes the orthodoxy and narrow interests of those who insist on traditional courts and oppose digitalisation.
In the Indian context, digitalisation of the Supreme Court alone might not resolve the issue. The question of access to justice is also complex due to the country’s vast terrain, high population, and the relatively higher degree of dismemberment of people from the constitutional courts, due to factors such as poverty and illiteracy. Therefore, a new system of legal aid will have to be evolved that connects the needy with the online courts as well, where the beneficiary should be given the option to choose her lawyer. Therefore, while trying to improve the digitalisation of the courts, one needs to bear in mind these essential challenges and radically modernise the country’s legal aid system in a pragmatic manner. Issues like Internet deficit and device deficit, especially in rural areas, must be addressed. The Centre needs to take up this issue along with their other digitilisation strategies. It should design the process of digitalisation at the grass roots level along with an effective literary mission.
Policymakers and those who run the court should remember what Justice Brennan of the US Supreme Court famously said: “Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But injustice makes us want to pull things down. When only the rich can enjoy the law, as a doubtful luxury, and the poor, who need it most, cannot have it because its expense puts it beyond their reach, the threat to the continued existence of free democracy is not imaginary but very real, because democracy’s very life depends upon making the machinery of justice so effective that every citizen shall believe in and benefit by its impartiality and fairness.” xiii
After all, litigation in constitutional court is not merely a legal process. It is also an economic and political activity. To bridge the gap between the country’s top court and the poor, we need a conceptual change and democratic praxis at the institutional and policy level.
Kaleeswaram Raj is a lawyer at the Supreme Court of India.
i The New York Times, March 15, 1964
ii ‘At America’s court of last resort, a handful of lawyers now dominates the docket’, Joan Biskupic, Janet Roberts and John Shiffman -Reuters, Dec 8,2014.
iv ‘A court adrift’, Nick Robinson, Frontline, May 3,2013.
vi ‘Whatever happened to access to justice’, Deborah L. Rhode, Loyola of Los Angeles Law Review, January 6,2009.
vii Bar and Bench,April 24,2021.
viii Indira Jaising v.Supreme Court of India (2017).
ix See footnote 2 supra.
x ‘Fair Advocacy as a right’, The Hindu, March 27,2014.
xi See footnote 4 supra
xii On line courts and the future of justice(2019), Oxford University Press, U.S.A.
xiii As quoted in the judgment of the Supreme Court in Madhav Hayawadanrao Hoskot v.State of Maharashtra (1978).