Editor’s Note: In this post, Ishika Garg analyses the verdict of the Madras High Court in S. Sushma v. Commissioner of Police. The author argues that Justice Anand Venkatesh’s efforts of sensitisation as well as the progressive character of the judgment, highlight the importance of greater training in the judiciary to decide on cases pertaining to LGBT issues.
Despite progressive judgements like Navtej Singh Johar v. Union of India, Indian society continues to view the world through a heteronormative lens. Even today, same-sex relationships are unwelcome and largely looked down upon. Such claims are reflected in the Centre’s recent statement before the Delhi High Court stating that same-sex marriages ‘will create havoc in the society’ and should be seen as ‘impermissible’. In such a situation, the task of ensuring societal progress falls upon the judiciary. In S. Sushma v. Commissioner of Police, Justice Anand Venkatesh of the Madras High Court has taken an important first step in the realisation of this task.
The case involved a protection plea filed by a lesbian couple, who feared a threat to their lives from their parents. Justice Venkatesh found it fit to refer both the petitioners and their parents to a counselling session with a psychologist who specialises in matters dealing with the LGBTQIA+ community. In a rare occurrence, the learned judge admitted that he was not well-equipped with the requisite knowledge to deliver a judgment in this matter. While he acknowledged the fact that he could cite scholarly materials and deliver a judgement which would be compatible with what is expected of him, he wished to embark on a journey to find his true and honest inner voice. “I am trying to develop this case brick by brick and ultimately, construct something purposeful on this issue”, he said. Hence, he decided to undergo a ‘psycho-education’ session with an expert in the field of issues faced by the LGBTQIA+ community. The judge believed that this session would help better his understanding of the problems faced by queer persons. The judge’s belief that the words in the judgment on this matter should reflect the feelings of his heart and not his mind, serves as an important reminder that awareness regarding the unjust discrimination faced by the LGBTQIA+ community is needed across society, and this includes judges.
The Current Framework of Judicial Training and Education: A Long Way To Go?
Justice Venkatesh’s decision serves as an important lesson for judges across the nation. With a plethora of cases involving ill-thought-out judgments and remarks, it is clear that not every judge will act prudently enough to seek the help of experts when faced with societal issues which they do not fully understand. While the judge’s actions represent a welcome step, they expose a glaring gap in the current sensitisation and training practices followed for our judicial officers. The pressing priority is to strengthen these approaches by providing greater sensitisation of judges in such matters in order to ensure that every judge is equipped with such understanding ahead of time. This has been recognised by Justice Venkatesh in this judgment, through his suggestion of conducting awareness programmes for Judicial Officers at all levels to ensure non-discrimination of members of the LGBTQIA+ community.
The responsibility of providing such training and sensitisation lies with the National Judicial Academy [NJA]. One of the objectives of this body is ‘to provide training to the Judicial Officers of the States/Union Territories’. Building on this aim, in Aparna Bhat v. The State Of Madhya Pradesh,the Supreme Court asked the Academy to train young judges with respect to gender sensitisation and include the same as a part of the continuing education of judges. The Court acknowledged that stereotypes and unconscious biases might creep into the reasoning of judges, but the same cannot be allowed as they possess the duty to be impartial in both words and actions. Justice Venkatesh stated that in an attempt to break free from such biases, he had made the decision to educate himself. He stated, “To be open, I am also trying to break my own preconceived notions about this issue and I am in the process of evolving”. The NJA must learn from this step and provide the necessary training in matters involving the LGBTQIA+ community to judges at the very foundational level.
The ideas of providing judicial education and training are well-defined in the existing system in India. Prof NR Madhava Menon, the first Director of the NJA, defined judicial education as a path leading to judicial excellence. Judicial training stands for the practice needed to develop the requisite skills to discharge the functions of a judge and the importance of such training was emphasised by the Allahabad High Court in a case, where it held –
“To equip the Judicial Officers to properly discharge their responsibilities and to enable them to meet the challenging situations, it is essential that there should be intermittent training courses for the Judicial Officers in phases.”
While both education and training are required to ‘make’ a judge, there is a larger element which the NJA is missing out on. Education and training provide judges with an initial toolbox, but do not equip them with a deeper understanding of the kind of personal development they are expected to engage in as the circumstances around them change. To ensure the maintenance of a vigorous and adaptive judiciary, what we need is judicial ‘formation’. ‘Formation’ can be viewed as a method to prepare judges to metamorphose their education and training throughout their careers. Judges are thereby motivated to identify themselves as life-long learners and their capability to undertake complex thinking is enhanced. Such enhancement shall help in the creating an equivalent of a ‘free marketplace of ideas’ within the judiciary.
The Judicial Formation Program
In 2004, Maricopa County in Arizona introduced a formation program for new judges. This program has largely been digitised now, and several pre-recorded sessions have been uploaded online. Along similar lines, the author proposes a formation program not only for new judges to supplement their usual education and training but also for existing judges as a part of their continuing education. Judges must identify themselves as life-long learners. The proposed program could have the following objectives –
- Personal growth: Judges can be familiarised with the concept of the Enneagram of Personality. The Enneagram describes nine different personality types, each of them linked to our main conception of the world. This conception shapes the way we interact with our surroundings and the can act as a limiting factor in our performance of several day-to-day activities. When Justice Venkatesh expressed his desire to shed away his preconceived notions, he was essentially identifying the limitations of his personality type. Understanding their personality type and its corresponding barriers can encourage judges to locate areas where they can grow more. Such growth will help them deliver judgements that are more just and appropriate.
- Inspiration: Over the past century, India has seen remarkable judges, and their collective body of wisdom holds great authority. Viewing their experience as a guide and incorporating the same into the curriculum of the formation program can provide invaluable information to the judges of the future.
- The art of listening: The more judges listen, the greater insight they develop to deliver more holistic judgements. While this art cannot be easily taught, with the right amount of stress on its importance, it can be developed in judges over a period of time.
We must remind ourselves that justice must not only be done, but also seen to be done, and its delivery is our right. The judges have a duty to deliver it in a fair and impartial manner. However, judges may also require sensitisation and training to deal with such case. Strengthening the pillars of justice will require more judges like Justice Venkatesh to acknowledge their limitations and agree to expand the boundaries of their knowledge. An effort on the part of the NJA to devise a judicial formation program along the lines of the author’s suggestions can ensure the adaptability of judicial officers with the fast-changing dynamics of our society. The same shall prepare judges to become more aware and accepting of their limitations, and take the appropriate steps in order to bridge the gap between their understanding and what is required in order to effectively dispense justice. The lack of sensitisation to LGBT issues ought not to result in judicial discrimination against the community.
About the Author: Ishika Garg is a second year student, studying law at NALSAR University of Law, Hyderabad.