RAJIV SHAH summarizes the most damning conclusions and conclusions of the report entitled “Challenges for Dalits in South Asia’s Legal Community” published by the American Bar Association’s Center for Human Rights regarding the prejudices that Dalit judges face when standing before the high courts and the Supreme Court , as well as the discrimination and lack of institutional support faced by Dalit lawyers.

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A high-profile report prepared by the influential center for human rights of the American Bar Association (ABA), noting that “in the 70-year history of the Indian Republic, only six Dalit judges have been appointed to the Supreme Court ”, has strongly opposed what he calls“ the lack of representation of Dalits ”in the legal profession and the judiciary.

Entitled “Challenges for Dalits in South Asia’s Legal Community”, prepared by jurists Anurag Bhaskar and Neil Modi, on the basis of 74 interviews, among which 32 respondents belong to the Dalit community, three are Adivasis, four belong to other classes backward, three are Muslims and 32 others are not Dalits, the report, released this month, quotes a respondent who notes that “the credibility of an institution such as the Supreme Court cannot thrive in a constitutional democracy if its marginalized communities do not explicitly express their confidence in the institution.

Referring to authoritative sources – reports of the Kariya Munda Committee, a parliamentary committee on the welfare of index castes and tribes (2000); the National Constitutional Review Commission, chaired by Judge MN Venkatachaliah (2002); the Standing Parliamentary Committee under the chairmanship of Dr EM Sudarsana Natchiappan (2006); and the National Commission of Listed Castes (2016) – the report states that in 2011 there were only 24 judges belonging to the Listed Caste (SC) / Listed Tribe (ST) against a total of 850 judges in the 21 High Courts. He further deplores that today, when only two of the 33 Supreme Court justices are Dalits, “[p]public data [regarding proportion of SC/ST judges] for the High Courts and the lower district courts could not be found.

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Prejudice in appointment to a higher magistracy

Citing serving and retired upper caste judges of the High Court on the “persistence of the implicit prejudices of upper caste judges towards their colleagues in the Dalit community”, the report quotes one of them as indicating how, during his tenure as Chief Justice of a High Court, “he encountered resistance from his upper caste colleagues whenever he considered a Dalit lawyer for appointment as a judge in this High Court.

Quoting a retired upper caste Supreme Court judge, the report: “Since Dalit lower magistrate judges are appointed through reservations / quotas, there is a prejudice against them in the upper magistracy that they are less deserving and therefore are not easily promoted. “, Adding:” This judge felt that the reservations had a negative impact on the Dalit candidates. “

According to the report, “[a]Another retired Supreme Court judge, who has served in the Supreme Court panel for about two years over the past decade, said the main parameters for considering the rise were maintaining representation at the state level of High Court judges and their seniority at all levels. He added, as there were no Dalit judges with seniority in the High Courts during his tenure, the issue of ensuring Dalit representation in the Supreme Court was not discussed in the framework of the middle School.

He quotes a like-minded former Solicitor General for India: “The fact that in the 70 years of its existence, the Supreme Court of India has seen only eight female judges and one Dalit chief justice. testifies to the reality that the composition of our judicial system is not represented by the Dalit population.

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Problems faced by Dalit lawyers

The report quotes another senior lawyer and former solicitor general of India as saying that the situation “has changed dramatically since the 1980s, and today” we are seeing a substantial increase in the number of lawyers from the Dalit community. However, he also regrets that the members of the Dalit and Adivasi communities were not sufficiently represented “since no systemic inclusion mechanism has been institutionalized”.

Citing three sitting High Court judges from upper castes, who “admitted that in lower courts, castes can play a role in obtaining clients,” the report notes that “often some lawyers in the Dalit community hide their identity to get business, “a fact” corroborated by another respondent from the Dalit community who shared that a relative had changed his last name to a Brahmin last name in order to get clients. “

Stressing that “As Dalits are one of the most disadvantaged social groups, they face barriers to accessing quality legal education,” the report said: “A former Chief Justice of India noted that most Dalit lawyers of his day did not study in English. – middle schools; as a result, they have been restricted to practice in lower courts, as higher courts require advanced proficiency in English … Since the language of instruction in the high courts and the Supreme Court is English, many Lawyers from the Dalit community did not have the opportunity to begin their practice before these constitutional courts.

The difficulties faced by the Dalit community in the legal profession do not end there, says the report, noting that bar associations in India have “historically been dominated by upper caste men.” “A review of the profiles of current office holders and other officers of the Bar Council of India (BCI) suggests that it is composed primarily of individuals from the upper castes. No program of the BCI or any bar association supporting Dalit lawyers in the early years could be found. “

Due to ‘discrimination’, the report states, ‘young Dalit lawyers do not have access to equal opportunities in the legal sector, they have only limited options, which leads them to create their own. grassroots organizations defending the rights of the Dalit community ”. Worse yet, “lawyers from the Dalit / Adivasi community working on human rights cases at the local level are labeled as Maoists or Naxalites in order to align them with state administration.”

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Insensitivity to SC / ST atrocities

Although efforts have been made to promote the capacities of Dalit lawyers through organizations such as the National Campaign for Dalit Human Rights and the National Dalit Movement for Justice, which have worked “with the administration systems of criminal justice to resolve the problems of access to justice for victims of atrocities and violence ”, the report specifies that“[m]Most district-level prosecutors are unaware of the atrocity law and are not sensitive to the background of the victims.

Referring to cases relating to atrocities against CS and TS, the report quotes a Dalit lawyer who has practiced on the Supreme Court for more than a decade as saying that “quite often he would experience differences in the approaches taken by lawyers experienced in handling Dalit-related cases.

In one of these cases, “three Supreme Court justices, viewed as liberal from their perspective, prevented him from making representations in cases of atrocities and affirmative action.” In another case, he was “arrested by the judge to read the facts in a case of atrocities”.

This article first appeared on Counter-view.

(Rajiv Shah is a senior journalist and the editor of counterview.org. The opinions expressed are personal.)