The Indian Constitutional Law and Philosophy blog turns three years old today. In its first year, I wrote this blog from the splendid isolation of a foreign country. Over the last two years, however, I have written it from the vantage point of a practicing lawyer, embedded within the legal system. The purpose of this blog has always been to contribute towards building a constitutional culture, and to initiate and participate in constitutional conversations. My time back in India has revealed to me several structural barriers standing in the way of this goal. This time last year, I wrote about academia’s abandonment of serious doctrinal scholarship, and how that is at least partially responsible for the breakdown of communication between the bar/bench and the academy. This time, I want to focus on access.
The Supreme Court has often spoken of our open and transparent justice system, something which is central to a well-functioning democratic republic. It stands to reason that constitutional conversations can only take place in an environment where the legal system is accessible. In that sense, the default language of the Courts (English) already excludes a very significant segment of our country’s citizens. Without minimising the seriousness of that issue, however (and its far too layered a problem to discuss in a blog post), here I want to highlight two very specific problems of access.
The first is physical access. To enter the Supreme Court, an ordinary person (who is neither a lawyer, nor a litigant) needs to have a pass that is signed off by an Advocate-on-Record (and the pass is issued only for one courtroom). This seems to me to be a complete negation of the principles of open justice. Why have a small group of lawyers been made the gatekeepers of the highest court in the country? Why cannot a citizen of the country get up one morning, and say to himself, “let me see how the Supreme Court dispenses justice“, and proceed to the Supreme Court to observe matters being argued (like you can do in the UK and the US)? If open justice is to mean anything, then surely it means that physical access to the Supreme Court ought to be a matter of right, and not a matter of whether I know an Advocate-on-Record.
An immediate objection to what I have just said is to point out the problem of overcrowding. This is admittedly a problem, but it is a problem that can be resolved in ways that do not involve this kind of iniquitous exclusions. The US Supreme Court, for instance, follows a first-come-first-serve pass-issuance system, and on the days of big-ticket cases, people queue up from early in the morning. Why can’t the Supreme Court do the same? If the further issue is the number of matters heard by each bench during the course of the day, then there are other ways (once again) of solving that; for instance, recently, someone suggested that each day’s cause list be divided into two, with the first half (to the extent possible) being heard in the morning, and the second half being heard in the afternoon. This suggestion was made in the context of preventing lawyers’ overcrowding, but is equally applicable to issuing passes (e.g., issue separate passes for the morning and the afternoon session).
There is, of course, the simplest solution: live video streaming of courtroom proceedings, on a dedicated Supreme Court online channel, as well as published transcripts of hearings. The courts have always been resistant to this proposal, however, and it seems a very long way away.
I fully accept that resolving the overcrowding-access issue is not an easy task. But surely the present system is makes the problem worse. It is a matter of some surprise to me how much this system has been internalised: I have never heard a judge or a senior counsel mention it as a problem that needs to be solved. If you take a step back and think about it, it seems (at least to me) obvious that – to repeat – making a small group of lawyers gatekeepers of the Supreme Court, the highest court of the land, the embodiment of the republic’s justice system, is really at odds with the ideals of the Constitution.
Physical access is one side of the problem. The other side is lack of access to court documents. At this point, as a general rule, all we have access to is the final judgment of the Court. In recent years, the Supreme Court has taken to recording the submissions of counsel in great detail (part of the reason for the increasing length of judgments), but this is not adequate. Judgments often fail to record submissions, or mis-record them. I have examples of both. The recent criminal defamation judgment, for instance, ignored several crucial legal arguments against the constitutionality of criminal defamation (its history as a public order offence and the inconsistency between the civil/criminal standards, to name just two). And during the hearings in the NJAC case, Mr Arvind Datar argued that Article 124C of the 99th Amendment violated the basic structure by converting a constituent power into a legislative power. This submission is recorded in the leading opinion, but in a manner that the core of the argument appears as something else entirely. However, even with the best will in the world, and with neither error nor avoidance, if a case is a conversation between the bench and the bar, what we have right now is a monologue that makes a feeble pretence at a conversation. Counsels’ submissions are, ultimately, only refracted through the lens of the judge’s understanding.
Compare this with the American SCOTUSBlog, for instance (and other linked sites), through which you can access briefs of the parties. And it makes a difference. Recently, while researching on some judgments delivered by the South African Constitutional Court, I also read the “Heads of Argument” submitted by counsel for the petitioners and the respondents. It immediately enriched my understanding of the case: I could see where both sides were coming from, how the Court responded to them, what arguments it found persuasive, and which it didn’t engage with.
The situation has improved somewhat in this past year, with the advent of websites such as LiveLaw, which have, on occasion, made petitions available in soft copy. It is nowhere near satisfactory, though. And in the absence of access to written briefs, it is scarcely surprising that reporting on Supreme Court proceedings is so problematic, and so inaccurate. I am not blaming the media here – in fact, it has happened to me as well. I once happened to be in Court during the hearing of an interesting case. I took notes, came back, and blogged about it. My notes turned out to be full of errors, and I had to hurriedly take down the post, with some degree of embarrassment. But what else do you expect? There will invariably be a lot that is lost in translation. Once again, you could remedy this with transcripts and/or video recordings. But with neither that option on the table, nor access to written documents, the conversation that we are having around our courts (and not just in constitutional cases) is, and will remain, severely impoverished.
Furthermore, it is not simply a matter of access. It is also a matter of democratisation. Presently, almost all constitutional matters are argued by a very small pool of senior counsel. I don’t want to get into the reasons for that here, but the conversation surely needs to be taken beyond twenty lawyers speaking to thirty judges.
Once again, there is a simple solution. Make the petitions available online, after they are filed in court. They are, after all, public documents. We shouldn’t need to file an inspection slip in the Supreme Court for an hour-long glimpse at the file (something only that lawyers engaged on the brief can do in any case). And after written submissions are handed over in court, and become part of the record, make them available online as well. Let us see what was argued. And let us also see how the Court chose to respond to those arguments, how it engaged – or didn’t engage – with them.
It is probably too much to expect an overburdened Registry to do this. However, it could be very easily done by briefing counsel and senior counsel chambers. They could put up their submissions online on Google Drive, or on Scribd, or on any other platform where it can be accessed and downloaded. For my part, I have created a new page on this blog called “Court Documents”, and I invite lawyers working on constitutional cases (if any of them comes across this post!) to send me links to soft copies of their submissions, after they have been filed in court (my email address is on the “About” page). I hope that, by this time next year, that webpage will not be as desolate as it is now, at the moment of its birth.
In many ways, it has been a deeply frustrating year for Indian constitutionalism (as was the last year, and the year before that, for that matter). But it remains, as ever, a pleasure and a privilege to think and write about the Constitution on a regular basis, and as ever, I remain deeply grateful to readers, commentators (both on the blog and through email), and of course, to the guest posters that I have hounded relentlessly, for helping me build the conversation. May it continue and get better.