Respect for the constitutional institutions of governance is integral to any democracy. That is a Constitutional duty. The institutions of governance include the courts. There is a quotation attributed to American Judge Oliver Wendell Holmes Jr., who said “This is a court of law, young man, not a court of justice”. We proceed to try and understand.
Law and justice do not always harmonise: law is administered by judges, and judges differ in beliefs, approaches, political or other leanings, etc. One judge aims at rigorous adherence to the statute law. For another, troublesome politically undesirable consequences of applied law require to be tweaked and moulded to deliver “a practical decision”. Some judges believe their function is to administer the law, others that they should dispense what they hold is their variety of justice. They claim that that would serve the common good. Whether incidentally that can also advance their career prospects is another matter, wholly irrelevant, of course.
This is perhaps the reason why despite the fact that a judgement of the Supreme Court referring to the destruction of Babri Masjid, called it pre-planned, orchestrated and a conspiracy, and yet a “CBI court” holding a trial to try those accused of the crime concluded that the events were not of the type that the Supreme Court concluded they were, but were of a more spontaneous nature, based on which conclusion it proceeded to acquit all the accused. The Gujarat kriya-pratikriya of burning of railway coach in which kar sevaks were travelling followed a couple of days later by genocidal carnage that forever ruptured Indian society, raised its head again, this time the interregnum between kriya and pratikriya being 450 years. We see pratikriya (wholly non-orchestrated, purely unintentional, completely unplanned, of course) for nursed grievances lead to windfall: political office.
There is another aspect which needs to be considered, and that is that the Supreme Court was considering civil rights pertaining to ownership of property, which is a determination based on preponderance of probabilities, whereas the court which delivered the judgement in the case against the 30-odd accused was deliberating on the criminal aspect which requires proof beyond reasonable doubt. Legal theorists have no doubt pointed out that there is a distinction between the expression beyond reasonable doubt, and the expression beyond shadow of reasonable doubt. Fortunately, what legal theorists say may not necessarily impact or obstruct the view that the judge has.
I have often expressed the view that the capacity of a politician to speak the truth is seriously compromised by the fact that he has of necessity to keep a large divergent mass of constituents of different dispositions, leanings, education, understanding and competing demands, favourably inclined towards himself, in order to secure the votes that would get him the electoral success that would perpetuate his presence in the seat he occupies. My view has consistently been that judicial officers having security of tenure as well as of terms of service do not need to consider what would be required to keep someone happy or might displease someone when they proceed to adjudicate a matter, and supposedly insulated from the variables politicians face, are better positioned to apply the law and arrive at a determination of competing claims with complete objectivity, dispassionately delivering justice. This view naïvely presupposes that the judicial officers would think along similar lines.
What I might consider a limitation can be construed as a sensible approach by someone else. It is therefore possible for a judge to hold the view that if he decides a matter in such a manner as to keep the political establishment in good humour, the consequences of such a decision, especially when it forms a series of decisions of a similar orientation, would have a beneficial influence on the possibility of his career advancing in hierarchical terms. The wisdom of such an “accommodative approach” could become more vividly appealing if there is conveniently available precedent to bring home that realisation, and seeing how judges discharging their duty with the one or the other orientation have been dealt with in terms of transfers, advancement or public appreciation, can ensure that this aspect is not lost sight of. It is not necessary that messages be conveyed in articulated words: politically loaded, non-vocalised, plausibly deniable, conduct-based messages can be equally if not more effective, and the greater the erudition and learning of the individual who is to “get” the message, the greater his capacity to read between the lines or evaluate events to understand the finer nuances of the unstated and, construing those as political diktat, fall in line.
Is it possible for a judge, imaginary of course, to balance on the one hand the need to discipline rogues who rape and murder girls, whatever their caste or religion, to conclude that the burning by the police of the body of a victim of alleged rape and murder does not constitute destruction of evidence, but is an act that preemptively quells potential caste unrest and thereby saves violence from erupting or society from disintegration, believing that in doing so he is yet upholding the law? Or does he Wendelise it to say “This is a court of law, not a court of justice” and that is salve for any inconvenience occasioned to his conscience?
Is it possible for this imaginary judge to effectively balance on the one hand the need to uphold the law, on the other consider what the world will then think about what passes for justice in the nation that aims to be a Vishwa Guru and seeks a seat at the UN Security Council as the largest democracy in the world? What happens when this judge, imaginary of course, goes home and looks at himself in a mirror?
And what of the policemen concerned, not just the ones who execute the ordered acts, but also those who issue the orders? But wait: did anyone issue any orders? Is there any evidence to that effect? Remember, Courts decide matters on evidence, and if destruction of evidence is a crime, the evidence of destruction of evidence must obviously be (you got it) beyond reasonable doubt. The ones who execute the acts, are those who are governed by their manual that says in effect what the Charge of the Light Brigade told us: “Theirs not to question why, theirs but to do and die.”
Do disciplined officers of the forces reflect on what exactly what they have done, does to them, once the pressures of responding in real time to orders of superiors no more prevent them from connecting with what they were taught in their paatshalas as children? And the superiors who issue the orders – if orders are at all issued – do their minds rest easy secure in the belief that they have prevented a major social upheaval? After all, an alleged rape plausibly deniable is easier to “take care of” than a rape proved from undeniable, irrefutable medical evidence.
And look, if a judge can rationalise that his judgement, inconsistent with applied law, achieves desired results, what prevents a police official from similarly rationalising that what he is doing is good for his fellow citizens, the society he polices? And incidentally, orders need not be actually issued: if an officer tells a constable “You know what you have to do” he is officially, ostensibly saying that the constable must follow the police manual and act in the most upright manner expected: and if the constable wrongly, aberrantly, deviously, malignantly, mischievously, malevolently, deliberately or inadvertently misconstrues that to mean something altogether different, is the officer responsible?
“Yeah” means yes! “Yeah?” means is that so? A slightly longer “Yeah?” means oh, really? A sneered “Yeah!” can mean that is nonsense. Tone matters. Voice modulation matters. Inflection matters. The accompanying look matters. The blink of the eyelids that is longer by a fraction of a second, matters. Though Order XVIII Rule 12 CPC mandates judges to record demeanour of witnesses under examination, there is never a record of demeanour of a superior while issuing orders to a subordinate! If at all orders were issued, of course! Evidence, did you say? Hmphh! Plausible deniability, my boy. Go prove it in any Court, vakil sahib.
It is possible for a judge to hold the view that a decision delivered on the basis of applied law alone would result in consequences that would be destructive of social cohesion wherefore for him it would be not only justified but necessary to factor in the social and political consequences of the decision, keeping in mind what he believes is the larger good of society. Another judge can take the view that it is not the duty of a judge to consider consequences of a judgement delivered consistent with the law, and that if there is resultant turbulence in society it is the job of sociologists and politicians to address those aspects within their jurisdictions of social commentary and governance respectively and, if there is enough turbulence to cause social unrest and civil strife or aggravated forms thereof leading to political violence, it is the job of the police to quell those consistent with the powers that they are entitled to wield working consistently within the parameters of the police or other manuals applicable.
To the citizen who sits back and looks at these unfolding events through the prism of his or her awareness, understanding and study, one can appear proper and the other improper but at the end of the day the decision must rest not on what he or his ilk hold sacrosanct and consider valid but on what a superior judicial tribunal determines. That is why the determination of the judicial tribunals must not only ensure justice is done but that it must seem to be done.
There is a pitfall here. In a society ridden with caste, religious, linguistic divisions and now thoroughly polarised as well, what seems to be justice to one section can seem absolutely unjust to another. Then what? Remember in one judgement the very reason a court decided to hang a person was the need for satisfaction of “the collective conscience” of a nation? Now to this collective conscience (an abstract unknowable) the decision must result in justice being seen to be done. The collective can be a group identifying with victims of rape and murder, or it can be the group identifying with perpetrators. Which is likely to be the larger in number? The more vociferous? The more influential?
There is a lot of caste violence in India. There is a lot of religious violence also, not to speak of political violence. Is justice to be an equaliser, creating a level field, or become a handmaiden, a plaything of whoever is able to bring clout making up an alleged conscience? And who will bring a greater clout than those greater in number? If things remain the way they are, if not law but unknowable, abstract “national conscience”, if not law but possible political consequences of its nonpartisan application, are to be judicial determinants, do the powers that be see where we are headed? If this is where they want to steer the nation, or even of this is where their actions are steering it, considering the Constitution talks “checks and balances”, what would the judicial check be mandated to do?
Politicians work under the constraints I mentioned above, and therefore an unconcerned observer can possibly understand where they are coming from. Judges do not have the same constraints, and if they claim to operate under constraints then those must be self-assumed fetters. As Richard Bach wrote in Illusions – the Adventures of a Reluctant Messiah, “Argue for your limitations, and sure enough they are yours.” If one assumes an obnoxious constraint that prevents one from discharging one’s duty the way it ought to be discharged, is one a traitor to the cause? Judicial office is a trust, and one assuming such office under oath to uphold Constitution and law, can hardly be heard to cite reasons why he did not.
There is a slogan: “You’ve got only three choices. Give up, give in, or give it all you’ve got.” Judges are no exception. Their decisions reveal what they choose, and what they choose, reveals what they are. Today, they judged others. Tomorrow, history will judge them.
Satyameva Jayathe.
Shafeeq R. Mahajir is a Hyderabad-based nationally known lawyer