March 7, 2020 10:10:19 am
Every Thursday is a new beginning for Justice Richard H Bernstein. It is on this day of the week that Bernstein, the first visually-impaired judge to be elected to the Supreme Court of Michigan in the United States, starts memorising case transcripts, precedents and other references of the 26 cases to be heard and ruled on every Wednesday, along with six other judges.
“It is like giving an exam each week. On Wednesdays, we have 26 cases on our conference agenda. We hear the most complicated, challenging cases that affect the state of Michigan. These could include a criminal case, where someone is facing life imprisonment without any possibility of parole, or civil cases related to environment, consumer rights, billions of dollars of taxes. The stakes are high for this position,” he says, when we meet him in Mumbai, where he spoke about disability. The preparation for it, therefore, begins the day after the hearings conclude. Bernstein, assisted by six clerks — the other judges get five clerks — “memorises and internalises” each case, as well as other judgments for and against his argument.
Justice Bernstein is not the first, or the only judicial officer with visual impairment. While there are a few judges in the lower courts in the US, another famous blind judge was Justice Zakeria Mohammed Yacoob, who was a judge in the constitutional court of South Africa till 2013 and, more recently, Judge Yousaf Saleem in Pakistan. Judge Saleem topped the written examination for civil judges but was not selected in the interview due to his visual impairment. It was only when the top court intervened that he succeeded in becoming the first blind judge in the country. In India, in 2009, Judge T Chakkaravarthy was the first judicial officer to be appointed in Tamil Nadu and, in 2018, Brahmananda Sharma was appointed the judicial magistrate in Ajmer. Each devised his own methods for carrying out his duties conducting judicial proceedings, with the help of technology or Braille.
“It is a lot of hard work. Just like running a marathon,” Bernstein says. The 45-year-old, who has been blind since birth due to retinitis pigmentosa, knows something about this. So far, he has run 24 marathons — seven of these despite suffering chronic back pain after an accident at Central Park in New York in 2012 — and one Ironman triathlon.
He worked as a lawyer for 15 years before he was elected as a judge in 2014, with his campaign slogan, “Justice is Blind”. Bernstein, representing people with disabilities, has fought for better access to buildings, public spaces, transport and jobs. He says that it is significant that a lady wearing a blindfold is the universal symbol of the justice system and its blindness to prejudicing factors. Despite the exhaustive effort each week, Justice Bernstein says he would have it no other way. Recalling a majority opinion he gave in 2018, directing for new trials to be conducted in a case where two men were wrongly convicted of murder in 1999, after they spent nearly 20 years behind bars, Justice Bernstein says, “When you are able to correct a wrong, the effort is worth it.”
In 2019, the Supreme Court of India upheld the Tamil Nadu Service Commission’s rule regarding a limit of 50 per cent disability in hearing or vision in the appointment of judges. The ruling said that a judicial officer “has to possess reasonable limit of the faculties of hearing, sight and speech in order to hear cases and write judgments”. It said that, if their disability exceeds 50 per cent, judges would have difficulties in performing administrative duties, like recording statements of witnesses and victims, conducting inquiries, in-camera proceedings, recording dying declarations, etc.
Bernstein, who was on his first visit to India, travels across the world to speak with persons with severe disabilities. He believes that lack of opportunities and access for those with disabilities are related to logistics. “The challenge is to get people to see that appointing persons with severe disabilities in positions of authority, even to make decisions on able-bodied people, is possible. In fact, since we cannot see, we cannot pre-judge and hence we make for good judges,” he says, adding that given an opportunity, on his next visit to Mumbai, he will meet lawyers, judges and bar associations about solutions, such as increased time in competitive exams for people with disabilities.
“India is challenging. Many are dismissed and stigmatised because of their disabilities or even social positions. But, if all the judges are the same, with similar education and life experiences, then they will not be as empathetic. If you have people with different perspectives, the whole story gets told,” he says.
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