[The writer is a Research fellow at the Vidhi Centre for Legal Policy, The article was published on The Times of India, Thursday, January 5, 2023]
𝑩𝒓𝒊𝒕𝒊𝒔𝒉 𝑹𝒂𝒋 𝒕𝒓𝒂𝒑𝒑𝒊𝒏𝒈𝒔: 𝑶𝒓𝒊𝒈𝒊𝒏𝒂𝒍𝒍𝒚 𝒎𝒆𝒂𝒏𝒕 𝒕𝒐 𝒄𝒐𝒘 𝒅𝒐𝒘𝒏 𝑰𝒏𝒅𝒊𝒂𝒏𝒔 𝒂𝒏𝒅 𝒔𝒊𝒈𝒏𝒂𝒍 𝒊𝒎𝒑𝒆𝒓𝒊𝒂𝒍 𝒔𝒖𝒑𝒆𝒓𝒊𝒐𝒓𝒊𝒕𝒚, 𝒎𝒂𝒌𝒆 𝒐𝒖𝒓 𝒄𝒐𝒖𝒓𝒕𝒓𝒐𝒐𝒎𝒔 𝒊𝒏𝒕𝒊𝒎𝒊𝒅𝒂𝒕𝒊𝒏𝒈 𝒇𝒐𝒓 𝒐𝒓𝒅𝒊𝒏𝒂𝒓𝒚 𝒑𝒆𝒐𝒑𝒍𝒆 𝒔𝒆𝒆𝒌𝒊𝒏𝒈 𝒓𝒆𝒅𝒓𝒆𝒔𝒔𝒂𝒍
In 2010, the then public information officer of the Calcutta high court claimed that the Right to Information Act, 2005 did not apply to the court. This was because Calcutta HC had been established not by the central or state governments of India, but by Her Majesty the Queen of England, under Letters Patent at the time of Queen Victoria.
Therefore, it was argued that technically, the high court could not be seen as a public authority under the RTI Act. Although the argument was rightly rejected, the incident should not be dismissed as a curious anecdote from the oldest high court in India, It is indicative of a deep rooted affinity for colonial trappings across the judiciary.
𝐉𝐮𝐬𝐭𝐢𝐜𝐞, 𝐜𝐨𝐥𝐨𝐧𝐢𝐚𝐥 𝐒𝐭𝐲𝐥𝐞
- To impose the Crown’s justice upon its subjects, colonial courts utilised several symbolisms to ensure that this foreign authority would be accepted and absorbed by native communities.
- A subject entering the courtroom would have to be overawed by the imposing grandeur of the physical space, replete with ornate symbols and designs which were unfamiliar to local populations,
- The judges were the hands of the colonial rulers, surrounded by mystique and visibly distanced from the subjects themselves through physical symbols such as the wig and the robe.
- Courts today continue to retain most of these symbols which are intended to show off the might, majesty, position and power of the judiciary.
This is at odds with modern conceptions which place the litigant's inherent right to seek justice at the heart of the judicial system. Nearly 76 years after Independence, the judiciary has been unable to let go of colonial era conventions which render the judicial process unfriendly and unwelcoming to litigants who it is meant to serve. These conventions are most apparent in the architecture, the dress code and the language of the judiciary.
𝐔𝐧𝐢𝐧𝐯𝐢𝐭𝐢𝐧𝐠 𝐜𝐨𝐮𝐫𝐭𝐫𝐨𝐨𝐦 𝐬𝐩𝐚𝐜𝐞𝐬
- Court room design often emphasises the “intricate subdivision of adversarial space". This is done with the use of striking elements:
- Ornately designed elevated dais.
- Witness stands placed at an isolating location.
- Restricted sightlines
- Shrinking space for litigants and other observers with the crowded arrangement of chairs and alignment of the accused docks and lawyers’ tables.
The reinforcement of social hierarchies through such deliberate arrangements intimidates litigants, for whom the courtroom is the first point of contact with the justice system. The notion of justice preserved in these designs is the need to impose authority, rather than celebrate justice as a participatory inclusive activity.
A reconciliatory approach towards court architecture is needed to ensure that the design of court buildings is welcoming. Other jurisdictions have achieved this by relying on local iconographies of justice. Sentencing courts in Australia have been built in collaboration with indigenous communities to ensure that ordinary Australians feel a sense of ownership over courtrooms and that they are not intimidated.
Similarly, the architects of the Supreme Court of New Zealand drew inspiration from indigenous trees and plants to create a structure that did not feel strong and imposing, but small and special.
O𝐮𝐭𝐥𝐚𝐧𝐝𝐢𝐬𝐡 𝐝𝐫𝐞𝐬𝐬 𝐜𝐨𝐝𝐞𝐬
Lawyers and judges are required to follow dress codes particularly in the form of the black coat and gown. Inspired by historical traditions in Britain. These garments are ill-suited to regional climate requirements and indigenous legal traditions. Although there have been slight modifications made in the past - particularly at the start of the Covid pandemic which forced a move to a hybrid model of video-conferencing hearings as well as general concessions during the summer months in a few states, - the dress code continues to be strictly enforced in most courts.
Chief Justice of India DY Chandra Chud recently noted a need to reconsider these codes factoring regional climate variations. A member of Bar Council of India committee is currently reexamining the dress code and calls to incorporate local iconologies and traditions.
Further, the elaborate wigs worn by judges might now be largely absent from courts, but they still make an occasional appearance. In Calcutta HC, tradition dictates that chief justices present themselves in full regalia, including the wig, at the time of administering the oath to the incoming governor: The paraphernalia worn by mace bearing ushers is still going strong in Madras HC. This display of ceremonial power continues to widen the gap between the judiciary and litigants, and must be dispensed with.
𝐋𝐨𝐫𝐝𝐬𝐡𝐢𝐩𝐬 𝐚𝐧𝐝 𝐋𝐚𝐝𝐲𝐬𝐡𝐢𝐩𝐬
Lawyers draft pleadings humbly praying for "justice to be handed down by “their Lordships" and ladyships”.
This subliminally reinforces the role of judges as enforcers of power rather than as neutral arbiters of justice.
- A litigant-centric judiciary should use language which highlights the respect that is due to the judges for the office that they hold, but does not place them at an insurmountable distance horn the judicial process.
- Addressing all judges as “Judge", "Justice", or using the usual prefixes (Ms, Dr, etc) followed by their name would go a long way towards this goal.
- Ridding the judiciary of its colonial overhang involves a shift towards a litigant-centric mindset, which recognise that justice is not divorced from the communities that access and participate in it.