“The feet of the people, behind the heads of the judges”: A case for banishment of the pedestal

“To judge between good and bad, between successful and unsuccessful would take the eye of a God.” - Anton Chekhov

Administering justice - the passing of judgment on man - has from the very beginning been perceived as a divine function. In the nascent Hobbesian State, where all men had surrendered unto one single sovereign all the rights in exchange of deliverance from a “nasty, brutish and short” existence, one of the rights surrendered was the right to be judged. The judgment, as any other command of the sovereign, had to be habitually obeyed.

Interestingly, barring a few cultures which looked beneath - remember Janak found his daughter not from the sky but from the earth - most of human civilization has assumed an elevated existence for the divine. Dante’s Hell is beneath, but Milton’s Paradise is above. The Greeks stationed their Gods on Olympus, we in the Himalayas.

The Sovereign, as the divine manifestation on earth as believed in many cultures even till recent times such as Nepal and Thailand, was also physically placed at an elevation. The throne would be placed at a height from the seating placement of courtiers or the standing section of the subjects. The historical architecture of palaces and forts, such as in Agra and Fatehpur Sikri, preserved this seating arrangement for posterity.

With passage of time, the complexity of modern governance compelled the Sovereign to shed his all-encompassing persona in favour of organs of State that had evolved to assist in the administration of the expanding state. Justice dispensation, over time, was one such function which stood divested in favour of judges - men learned in the laws and customs.

As these judges dispensed justice in the name of the Monarch, the trappings of divinity perhaps stood carried over and, like Kings, the judges would also be seated at an elevation. This was how in the commonwealth courts, the judges are seated on an elevated dais to emphasise the point that the judge stood apart from the other principal stakeholders, namely the lawyers and the litigants.

The English imported their legal system into India and decades after they have left, we seem to be completely at ease with the same, including wearing black to mourn Queen Mary, wearing gowns as was the practice in Britain, and addressing the judges with feudal honorifics such as “Milord”.

All across India, courts and tribunals are so arranged in order to ensure that the elevation for the judges’ seating is duly provided for. Some forums, such as under the Competition Act, had made a departure by having the members and lawyers seated at the same table across each other.

A few years back, I was asked to be a part of a Lok Adalat with a sitting judge of the High Court. I arrived at the designated time and the court room was packed with litigants. However, the staff were running helter-skelter. It was that day when I understood how significant the “seating” was in the larger scheme of justice delivery!

The dilemma for the staff was how to place the both of us. Surely it would be a sacrilege to have me seated on the dais along with the judge, as I was not one. Yet it was unthinkable for the staff to compel his Lordship to sit at ground level with an ordinary lawyer.

Now conducting a Lok Adalat with one member seated on the dais and another at ground level was simply silly, hence the quandary. Mercifully, the problem was solved when the staff finally managed to muster courage to seek a solution from the justice himself, who readily and graciously agreed to sit alongside me at the ground level.

This was not the first time seating has troubled the court and perhaps will not be the last time. The most famous seating dilemma the Court faced was when Indira Gandhi decided to teach the Syndicate a lesson by instigating party members to vote as per their conscience and against the official Presidential candidate, Neelam Sanjeeva Reddy. The elections ensured his defeat.

In a matter of time, the winning candidate had his victory impugned in Court. As in the matter of inter-state Disputes, election disputes relating to the post of President of India had to be directly tried by the Supreme Court.

Varahagiri Venkat Giri, the defendant, sought an exemption from appearing in Court. The Court was requested to record his evidence through a commission, to which suggestion it was agreeable. However, it insisted that the exercise in Rashtrapati Bhawan would be a public one. Realising that a public spectacle was unavoidable, President Giri agreed to appear before the Supreme Court itself - the first President of India to do so.

Imagine if my Lok Adalat seating can cause such panic, what a logistical nightmare this must have been for the Court administration. Ultimately, the details were worked out. Giri would be seated on the dais alongside the judges. He appeared for recording his deposition on two days - April 20 and 21, 1970. The judges were seated before his entry. His Excellency entered and greeted the judges with a Namaste. The judges did not respond. He was seated and two glasses - one with water and another with juice was also made available to him.

Well, one may say that this example is not apposite. Historical trials of the Sovereign herself, like Mary Queen of Scots at Fotheringhay Castle, form a class of their own, where perhaps the judges were not placed on elevated seating looking down on the Sovereign.

Another litigant to have been accorded unusual courtesy by the Court was none other than the Father of the Nation. In his sedition trial, Judge CN Broomfield is said to have himself stood up when the Mahatma entered his courtroom.

The current lockdown has meant virtual court and Netflix. One compelling serial I binged on was Trial, which depicts in detail a prosecution conducted in an Italian Court by a Prosecutor. I also have appeared through digital link for some court hearings during this time. One thing that struck me from both these experiences is the absence of the “elevation”.

In the serial, the Italian judges were seated at the same level as the lawyers, witnesses and litigants. In the video link, the justices are also sitting in their own residences trying to discharge their constitutional duties at great inconvenience. What struck me again was the absence of the elevated dais.

While the layman may find my fixation moronic, be assured that this little detail may not be as irrelevant has you may seek to dismiss it as.

A little research and pointers from friends on Twitter pointed me towards South Africa. Until then, I had known this country as, post-apartheid, having one of the most modern and progressive Constitutions in the world. What I was not aware was that the nation had also put in so much thought into the building where this Constitution was to be protected, the Constitutional Court Building.

This building is built out of bricks from the demolished former prison on which site the Rainbow Nation chose to site its top court. However, the stairways were retained as a symbol of the transformative aspirations of the Constitution - akin to our Vedic exhortation, lead us from Darkness unto Light.

In the main Court room, a row of horizontal windows have been set up just behind the seat of the judges. The seating of the judges are not at an elevation but in a depression so that while the windows are at the height of their heads from the inside, they are on ground level.

The litigants and lawyers sitting in court would therefore be viewing the feet of passers-by moving along, just above the head of the judges of the Constitutional Court. It is to serve as a perpetual reminder to the judges that in a constitutional democracy, their role is to serve the common man and not play God to them following any antiquated tradition clinging on to the vestiges of the theory of divine justice.

As virtual courts become the new normal, while conceding that our judiciary ‘s hands are full with far greater vexations of epidemic proportions, perhaps it would not be such a bad idea to reflect on this example from the land who could tell India, 'You send us a bumbling lawyer, we sent you back a Mahatma!'

The pedestal - a relic of monarchy - is an anathema to constitutional democracy. Its elimination, as has been brought about by the pandemic, has not in any manner taken away from the solemnity of judicial proceedings. In fact, sequestering our judges in the “ivory tower”, something which was once favoured as a tool to preserve judicial independence, has woefully failed to deliver.

During court break, Earl Warren took a personal road trip down South. He discovered to his shock one snow-filled morning that his driver had to spend the whole night inside the car as no inn would house the coloured. The Chief Justice returned and led the Court to outlaw the “Separate but Equal” Doctrine in Brown v Board of Education. A perspective of how racism worked in action perhaps would have eluded him and his colleagues from that elevated pedestal had not His Honour climbed down from the same and taken that trip!

It may be argued that the pedestal is symbolic and the elevation benign. However, such arguments should not detain us. After all didn’t “the greatest man of our times” use the symbolism of a pinch of salt to bring a colonial power to its knees?