Over the last three days, notable academics, eminent lawyers and international legal experts joined hands with members of civil society, policy makers, politicians, media, and NGOs to discuss the state of law in India. Several engaging panels put together by the knowledge partners debated crucial aspects of the Indian judicial system and the legal framework to come up with action points for improving the state of the law in the country. International legal experts shared their insights and experiences so that the benefits of global best practices could be dovetailed into the proceedings.
This was the fifth edition of Difficult Dialogues and the theme of law was especially relevant as the country today is faced with various challenges to providing justice and equality to all its citizens in an effective manner. Commenting at the conclusion of the three day summit, Surina Narula, Founder & CEO of Difficult Dialogues said, “In the fifth edition of Difficult Dialogues this year, we were able to discuss the state of law in the country, identify the various issues and problems that exist, and come up with action points that could help in the speedy and equitable dispensation of justice to all. I thank the knowledge partners for curating these thought provoking sessions which are so vital and relevant in today’s time, and am grateful to all the notable academics, eminent lawyers and international legal experts for sharing their thoughts and ideas at the forum. As an outcome of the Difficult Dialogues 2020, we will be documenting all the recommendations that were tabled in the form of actionable white papers for the benefit of all.”
This year the knowledge partners for Difficult Dialogues include the Centre for Socio-Legal Studies, University of Oxford, (CSLS, Oxford), Bar Association of India (BAI), OP Jindal Global University, Centre for the Study of Law and Governance, Jawaharlal Nehru University (CSLG, JNU), Goa University (GU), and the International Centre Goa (ICG). The topics covered in the panel discussions included ‘Discrimination Law and Minorities’; ‘Gender, Legal Profession and the Courts’; ‘Reforms in the Administration of Justice’; ‘Free Speech, Censorship and Media’; and ‘Accountability vs. Independence of the Judiciary’. In addition, there were special panels on laws related to women and children, on technology and the environment, and laws around the right to privacy.
Difficult Dialogues 2020 concluded with Daring Debates which captured the voice of students through an intensive college debate series on the legal framework in India. The regional winners were invited for the grand finale where the topic was ‘Environment Protection: A Case for State Surveillance or Individual Discipline?’ and the debate was moderated by wildlife filmmaker Malaika Vaz. After the end of a keenly contested session Erenbeni Humtsoe of St. Anthony’s College, Shillong was declared the winner, Manish Kumar Jha of IMS Law College, Delhi as the first runner-up and Sasha D’Souza of Dnyanprassarak Mandal’s College and Research Center, Goa was the second runner-up.
A summary of the key points and recommendations emerging from the various panels is presented below:
AFTER THE AADHAR JUDGEMENT: DO INDIVIDUALS HAVE THE RIGHT TO PRIVACY IN INDIA?
The right to privacy is a fundamental one and the panelists criticized the Supreme Court in the UID case for waiving the poor’s right to privacy on the assumption that they are more concerned with getting access to basic socio-economic rights.
The panel pointed out the dangers of India becoming a surveillance state as the government and big international companies are gaining deeper access into the personal data of our citizens. For example, companies like Facebook whose database has information on 2.1 billion users, could take control of our social space and political affinities; therefore the panel recommended the urgent need for putting into place legislation that could ensure data privacy.
LAW AND TECHNOLOGY: WHAT’S THE FUTURE?
· The panel recommended the use of technology and artificial intelligence in the following areas of the legal framework – drafting and analysis of contracts, quick search and registration of intellectual properties, trademarks and patents, legal analysis of case histories, assessing trends and patterns to build in operational efficiencies, and from administrative functions like electronic billing to using analytics to predict legal outcomes.
ACCOUNTABILITY V/S INDEPENDENCE OF JUDICIARY: IS THE BALANCE RIGHT?
· The panel felt that the present collegium system of appointing judges in India needs to be relooked at and proposals from various sections of society should be considered to work out an improved framework.
· In terms of accountability, at present there are no stages between appointment and dismissal of a judge. The panel proposed a framework that does a detailed analysis of a judge’s performance to work out various stages and points in between where corrective checks and remedial action can be taken.
· Other recommendations made by the panel to improve transparency and accountability were inclusion of legal academics and jurists in the legal setup, software to set up dates for legal hearings and the live streaming of court proceedings as it happens for parliamentary proceedings.
REFORMS IN THE ADMINISTRATION OF JUSTICE: WHAT CAN HELP?
· The panel discussed several problems that delay the administration of justice like vacancies in the number of judges at all levels of court, delays and adjournments, non appearance of witnesses and hastily passed legislation (especially as a response to public outcry). As a result there are 30 million pending cases in the country and the Fast Track Courts and Special Courts have not helped.
· The panel recommended a higher allotment (currently less than 2%) of the national budget to the judiciary sector like it does for other sectors like health, water, banking systems, etc.
· Other recommendations and action points included a bottom-up approach to reforms which involves multiple stakeholders like the judiciary, legal academics and the litigants, judiciary training, impetus to the legal education system, providing legal aid to the poor, and more work on the case management & monitoring system and digitization of legal records.
FREE LEGAL AID SERVICES FOR WOMEN AND CHILDREN IN INDIA
· Article 15(3) has special provisions for women and children to ensure equality and provide them free legal aid. The panel explained how legal aid is not restricted to just getting a free lawyer but also creating awareness in the society through educative campaigns so that women and children know and understand their rights. Delhi State Legal Services Authority has played a pivotal role in this regard by building awareness through its various initiatives such as door to door campaigns, legal literacy clubs in schools etc. which are conducted by their paralegal volunteers team.
· While discussing the challenges faced to ensure free legal aid for women and children, the panel highlighted non-reportage of cases as a major deterrent. This is because the victims shy away from reporting due to fear of threats from perpetrators and the social stigma attached. It was pointed out that while there already are adequate laws in place, the implementation could be improved by sensitizing the government workers including the police, who write the initial reports, so that reporting levels can increase.
GENDER, LEGAL PROFESSION AND THE COURTS: IS THERE A BACKLASH?
· It was noted that while women lawyers are slowly gaining acceptance and litigants have trust in their capabilities; the gender diversity continues to be lopsided. In India, only 11% of the judges in the High Courts are women whereas the women representation in the judiciary in UK is 23% while it is 65% in Greece and 78% in Slovenia.
· The panel recommended an overhauling of the courtroom culture and architecture in India, ensuring that there is nothing misogynistic in the way court conversation takes place, or the way the proceedings and judgements are recorded. There could be documentation and portraits of successful women lawyers in the courts to encourage more women to take up the legal profession. Women could also be encouraged to continue to stay in the legal system through pro bono legal firms.
· Panelists suggested that in order to make the legal system more diverse and productive, the practitioners and the academics need to be brought together. This kind of system already exists successfully in the UK and is called The Feminist Judgements Project. It was also recommended that during judicial appointments, one should consider gender diversity as it also leads to diversity of perspectives.
DISCRIMINATION LAW AND MINORITIES: IS JUSTICE DONE?
· To address the issue of discrimination laws and minorities, the panelists mentioned the need to decode the root essence of equality and then assess whether one uniform law works for all or separate provisions are required to protect the interest of the minorities. We are currently witnessing the erosion of equality which is being replaced with uniformity. Equality is when all sections of the society enjoy similar on ground benefits and the panel agreed that there was a case for providing additional impetus to minorities to bring them on par with the rest.
· There is a big knowledge deficit about the cultures of minority communities, and therefore lack of empathy, among legal professionals and the implementing authorities like the police. According to the panel, an effective way of resolving the issue could be by educating and sensitizing the judiciary and the forces, and by recruiting people from diverse backgrounds.
FREE SPEECH, CENSORSHIP AND THE MEDIA: DOES LAW IMPEDE FREEDOM OF SPEECH?
. Dissent was seen as a key element of any democracy and diversity of opinion has to be respected. As part of the freedom of expression, one is entitled to have a different opinion but the problem arises when that opinion is imposed on others. Free speech should be encouraged and the remedy against attacks on free speech is more free speech. However one needs to redefine freedom given today’s vibrant world of media, especially social media. There is a need to relook and create a better balance in the laws related to censorship, sedition, libel and defamation.
· The panel agreed that the media needs to be vigilant but it should do so in a responsible manner by following the due process. This is especially important in the reporting of sub-judice matters where media pronounces the guilty before the courts do so.
MAKING ENVIRONMENTAL LAWS EFFECTIVE: HOW TO ACHIEVE SUSTAINABILITY?
· The panel debated the issue of sustainability vs. sustainable development. It was suggested that the laws like Environment Protection Act (EPA) and Coastal Regulation Zone Act (CRZ) and bodies like the National Green Tribunal (NGT) take a more holistic approach so that both economic development and sustenance of our environment go hand in hand.
· India is a signatory to most international environment agreements and also has strong legislations but interpretation and implementation are the problem areas. It was recommended that all implementation should be done in full and in addition there must be a continuous evaluation of effectiveness at all stages.
· Environmental laws are the most amended laws in the country. This often creates confusion and the judiciary needs to examine these amendments and check whether it is being done to benefit any organization. Apart from the judiciary, the citizens, civil society, technologists and scientists should play a role by questioning these amendments which are placed in the public domain for 60 or 90 days.
LAWS RELATED TO CHILDREN: ARE THEY REALLY IN FAVOUR?
·While there are adequate laws for children, the panel mentioned that the laws were not getting effectively implemented due to lack of resources. It was pointed out that the budget allocation for children has been reducing over the years and has come down to 3.8%, whereas it needs to be increased to at least 8% to make a visible difference.
· Panelists recommended the need for social audit of the legislation to ensure that no child is treated as an offender. They also spoke on the importance of retention of children in schools and creating a mechanism to the restoration of offending children back into society.
GOA AND THE LAW: WHAT LESSONS CAN WE LEARN?
· After detailed deliberation on whether the Uniform Civil Code should be applied at a national level, the panelists agreed that India is too diverse to have one code for all. We are ethnically, religiously, and linguistically varied and it is impossible to adopt one system that would be able to treat everybody with the same degree of equality.
· With the enactment of the Goa Children’s Act in 2003, Goa became the first state in India to have a comprehensive children’s law and a children’s court which has helped create a child friendly society. The panel discussed the benefits and experiences in the state and how the model could be adapted and replicated in other states as well.
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