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The Hindu on indiaserver.com : The dignity of judges - II

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Thursday, December 16, 1999


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The dignity of judges - II

By Gail Omvedt

DRESS, SETTING, elevation, body language - all of these express relationships and have a bearing on such things as ``the dignity of judges.'' A major difference in this respect exists between the U.S. (or other countries with a jury system) and India. Even dress may not be so important as this issue of setting and body language. For instance, during any jury trial, the advocate addresses himself to the jury, and since he (or she) has to win the verdict from the jury and not the judge, he does her best to look and behave in a way which will win their confidence, respect and sympathy. The lawyer must impress the jurors, but not impress them with the sense of being an alienated, autocratic haughty power - here too much ``dignity'' of this kind can be counterproductive. So the advocate strolls around the courtroom, looks the jurors in the eye, tries all kinds of subtle behaviour to establish himself (herself) as someone in the ``know,'' someone who has expertise, but someone who is not proud, not of an arrogant class, caste or race; in short, a person like themselves. Even the judge is expected to be ``of our kind.''

In India, in contrast, the advocates stand facing the honourable judge, address all their arguments to him, look up to him as to an eminent power. The very setting establishes the dignity of the judge as well as the subordination not so much of the ``pleader'' (the very word itself suggests begging for mercy) but also of the accused, the ordinary people who are standing ``at the bar'' of the court.

Many would argue that equalitarianism and democracy have gone too far in the U.S., to the point where children can now take their parents to court and teachers in big city schools are shouted out of their classroom. Judges and teachers then do have to have some dignity. The question is one of balance. How much dignity should a judge have?

The question can be turned into a sociological and historical one: how have the standards of dignity and norms of behaviour currently existing come into being, how have they changed, what are the social, cultural, economic or political influences behind these? What function do these standards and norms play, either for maintaining or transforming the power structure of society? Hierarchy and subordination are of course much more marked in all traditional societies compared to the modern world, but in India, the two major influences were of course the British imperialist one and Indian Brahminic feudalism. In India today wigs, robes, all the paraphernalia of formal courtroom procedures, many laws and the vastly expanded interpretation of ``contempt of court'' are British in origin. However, much of the maintenance of these and their accompanying aura surrounding both judges and lawyers, an atmosphere of awe that presents the inhabitants of courtrooms as more than human, could be analysed as a Brahminic-feudal survival. Justice in traditional India was of course not the beloved ``Lok Adalat'' model of a wise man sitting under a tree dispensing justice in the interest of all, impartially and without cumbersome rules. This may have existed as a minor factor (and even this was paternalistic if not out and out patriarchal), but the main reality of justice was a caste-defined justice. The ``dignity of judges'' meant the rule of the caste elites; and breaking of the rules of hierarchy and subordination was itself ``contempt'' of court.

Just as this Brahminic tradition of the dignity of judges existed, so anti-Brahminic and Dalit protests and alternatives have existed throughout Indian history. The greatest exponent of these in the 19th Century was Jotirao Phule, the great Maharashtrian social revolutionary who combined a backing in this ancient India tradition of equality with the beginnings of access to modern scientific knowledge and ideals that the British rule opened up. Phule wrote scathing indictments of the judicial system of his day - attacking both British and Indian elites - in words that could easily leave him open to ``contempt of court.'' He did not simply argue that no Bahujans or Dalits or women were represented among advocates, judges, higher level government employees, engineers or whatever; he describes in detail the consequences of this. For instance, he describes judges as follows, in a rough translation from his masterpiece, Shetkaryaca Asud (The Farmers' Lash):

``Many young gentlemen who are able to memorise and parrot various kinds of lawbooks and give answers in the exams are made into enormously powerful judges by our credulous Government. These people, who have lost any important link to their social roots become the legitimate heirs of the Bhoodevas here, shamelessly considering even the elderly people of other castes to be inferior. First, after telling all the witnesses to be present at the court at 10 a.m. according to the Government rules, they come themselves around noon to the court, and after lying around for half an hour or so in some room, they come out, rubbing their eyes, and sit in a square thronelike chair. They put some paan from their pockets into their mouths, and chewing like a monkey with one leg crossed over another, take out the tin from their pockets to stuff a bit of snuff into their nose, in the process throwing a casual glance at the group sitting below. At this moment the pink-turbaned, black-coated pantaloon- and- booted pleader comes, giving a twist to his moustaches and uttering the call `Your Honour' like a mace-bearer. Then this Bhoodeva Judgesaheb, rubbing his hand on his stomach, asks his lawyer caste-brother, `What do you have to say?' With this the Vakilsaheb puts his hand in his pocket and says, `Today we have come to the session on a murder case. With your graciousness we ask today for an adjournment.' After the Justice nods his head to this, the Vakilsaheb leaves on his road on a fancy horse and carriage and the Justice begins his work.'' (Samagra Wangmay, Mumbai: Maharashtra Sarkar, p.210)

With this prelude, Phule proceeds to describe how the ``Bhoodev'' judges torment and cheat those of lower castes and minority religions, threaten the poor with lashes and other punishment, twist the law to serve their ends, act in collaboration with the advocates, and dismiss their cases if so much as a protest is made. His theme in Asud is that not only the judicial system but the whole government bureaucracy is rife with bribery from top to bottom. His writing is in raw, rough Marathi; he has even today been accused of being obscene; and it is surprising that the judges of the time did not accuse him of contempt of court. Certainly he attacked and sought to destroy their dignity.

Most likely because the British did not understand Marathi (and Phule also mocks the poor understanding and pronunciation of those who try) and no Brahmin would have translated the above passages for them, Phule was safe from any threat of prosecution for contempt of court.

Today of course there have been major changes in India as elsewhere. Even women are making their appearance in the courts, and even Dalits can be found sitting on the benches of at least lower level courts. In India, like every other society in the modern world, the expected patterns of deferential behaviour at all levels of society are getting transformed. We feel that dignity, in the end, must be established by humans themselves, not by artificial props, and that true human dignity is hurt by arrogant behaviour as much as by ``contempt.'' But the pace of changes remains slow. It is time that the dignity of judges was questioned.

``For auld lang syne my dear,

for auld lang syne,

we'll drink a cup of kindness yet

for auld lang syne''

(Old Scottish song traditionally sung at the stroke of midnight on New Year's eve in the U.S.; ``auld lang syne'' means roughly ``for old time's sake'')

(Concluded)


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