The problem
THE Supreme Court as an institution has, like a strange incandescent moon, waxed and waned in the public mind in spectacular ways. In the last year, hosannas have been sung to its progressive decisions on gender and human rights, creating a literal poetics for Indian democracy. At the same time, the court has become a source of suspicion and doubt as judges battle it out among themselves. Chief Justice Dipak Misra and his colleagues played the quarrelsome household, washing the court’s linen in public as the self-styled battle over the integrity of the court raged in public. Not to be outdone, Chief Justice Gogoi created the seeds of scandal in the way he faced charges of sexual harassment from his office colleague. What stunned people was not the charge but the manner in which the judge handled it. The gossip and the debate about the court raged, moving from the pedantic to the puerile, exposing strangely the human face of the court.
As the questions take time to settle, one is faced with the more intellectual task, how does the court speak through its judgements? What do they reveal about the court in terms of discourse and institutions? How does law as a process look through the spectrum of judgements? This anthology of essays is an attempt to look at the court as a thinking, working institution. The range of cases considered is wide moving from the brilliant to the banal.
The choice, in a way, reminds one of a Justice Krishna Iyer story. The judge was once asked to describe two academic colleagues from Delhi. Iyer, known for his metaphorical preferences, replied: one has a steady flame, unflappable through controversy. The other, he dubbed as a sparkling firecracker, sparking almost in an incendiary sense. The first he claimed would become a great institution builder, the second would stretch thought and paradigms to the utmost. This range of essays looks both at the nature of institution building and the great forays in thought which add an intellectual power, a charisma to the court. The essays written by legal professionals, academics and human rights activists ask the basic question: ‘how does the court as discourse and institution appear in eyes of legal professionals.’ They look at it with a professional eye, both skeptical and affectionate, and the result is this offering.
Mahindra Pal Singh charts the trajectory of the concept of constitutional morality and its entry into judicial discourse starting from the Naz Foundation case. He shows how the lawyer’s approach to constitutional morality is distinct from a non-lawyer: ‘lawyer’s approach to the issue of constitutional morality is confined to narrow and easy justiciability issue of claiming certain fundamental rights […] while the non-lawyerly approach looks at constitutional morality not only from the angle of an individual claiming and realizing one’s personal interests, but the interests of the society and the nation as a whole.’ Singh insists that there is much to learn from the non-lawyerly approach as the guarantee of basic rights can only be ensured in an ‘effective democracy with an equally effective and socially oriented administrative set-up.’ Therefore, much would be lost if the concept of constitutional morality is confined to fundamental rights.
While the existing legal literature offers little in terms of a satisfactory explanation of constitutional morality, Singh sees the recent evolution of the concept of constitutional morality by the Supreme Court, during the tenure of Chief Justice Dipak Misra, as significant. Tracing the decisions where this concept has been expounded, Singh observes that constitutional morality has been variously associated with ‘institutional integrity and the requisite constitutional restraints’; ‘the quality of the Constitution […] [that] takes due care of each and every individual and their groups including definitely all minority groups’; the ‘espousal of pluralistic and inclusive society’ which must be preserved by every organ of the state including the courts; the goals in the Preamble – liberty, equality and fraternity.
Based on comparative constitutional law research, which shows that executive actions are not beyond the purview of constitutional morality, Singh points out how in utter disregard of constitutional morality, despite the parliamentary system of government in India, many important decisions are taken by a select few who form the executive without any discussion or debate in Parliament. This ‘democratic deficiency’ needs to be addressed as seriously as the other instances which have been brought before the Supreme Court.
Tarunabh Khaitan, in a more formal essay, raises the question of how does one judge a court. He explores the relation between everydayness and the quality of court judgements. He makes a distinction between thinly normative criticism and a search for a deeper normativity. He employs the analogy of the knife. Thinking anthropomorphically, one can say a good knife cuts vegetables, a bad knife cuts people’s fingers. The Supreme Court, he senses, often functions as a bad knife because it does not use the right sort of blade. Khaitan’s essay is an appeal to the necessity of greater reflexivity as an institution. A time and work study of the court reveals that it spends more time on appellate rather than constitutional issues. The court becomes, according to Khaitan, a fast moving assembly line rather than a reflective agency which can bring consistency to its judgements.
Kalpana Kannabiran uses the case of Romila Thapar v. Union of India (2018) to foreground the issue of suppression of dissent and resistance in contemporary times. Through this case, which deals with the arrest of human rights lawyers, civil society activists and performers, on the charge of incitement of violence, Kannabiran raises the conceptual question about the ‘relationship between the performance of resistance and incitement to violence.’ The essay comprises of ‘vignettes of experiences’ of struggle voiced through performance in courts, movements and prisons – reading poetry, singing songs, shouting slogans. Aptly described as ‘liberty jurisprudence’, these ‘performative moves’, Kannabiran shows, have the potential to arrest the dangerous trend of ‘dissent’ being turned into ‘incitement’. Mapping the history of dissent in legal cases by focusing on the voices of the marginalized resisting the state apparatus, the essay is an attempt to jog legal memory to remember the forgotten history of protest and, in a novel way, seeks to resurrect the tradition of dissent.
In an essay about the High Court as a mode of thought, B.B. Pande explores the questions of marginality and criminality around beggary. Pande reflects that civilization and violence are two sides of the coin, interconnected parts of a single economy of thought. He shows that marginalization, criminalization and decriminalization are social constructions, and consequences of the larger social and political forces at work. Pande analyses reflectively how law, which criminalizes the marginal, haunts the search for justice. He remarks that criminalizing begging fails to deal with its underlying causes. It is iatrogenic in that the law as expertize adds to the very violence it seeks to cure. The unintended consequences of law become one of the great challenges to the fate of justice. Yet through his critique Pande shows faith in the inventiveness of law.
Abhayraj Naik discusses the inventiveness of law as it confronts nature. The question is about how one looks at the ecology of the court as an institution. Does it forge new directions for the recognition of nature? Naik attempts to answer this question by discussing five judgements of Justice K.S. Radhakrishnan. He studies not the implementation of judgements but the ontogenies and imaginaries resident in legal texts. The five judgments range from the Asiatic Wild Buffalo judgement to the Jallikattu case, seeking to create a new jurisprudence on nature foregrounding the fundamental distinction between anthropocentric and ecocentric perspectives, where the relationship between humans and non-humans creates new notions of community and responsibility. The poignancy of the judgement comes from a juxtaposition where the Gir lion and the Niyamgiri tribal are looked at as dying species. Radhakrishnan is at his best in examining the power of myth in the eyes of law, as the Dongria Kondhs believe that forest rights should be issued in the name of the tribal deity. Nature becomes part of the social contract as the judge unravels the creative power of an ecocentric perspective.
P. Puneeth’s essay critically examines the nine-judge decision in Justice K.S. Puttaswamy v. Union of India where the right to privacy is categorically declared as a fundamental right. Puneeth closely reads all the six separate judgements delivered in this case in order to illustrate the contours of the right to privacy. This exercise in close reading is directed at two ends: first, to discover the ‘real worth of right to privacy’, understanding its extent and limitations; second, to diagnose court-speech in ‘plurality decisions’ (where judges agree on the conclusion but are not unanimous in their reasoning). Puneeth’s analysis is revealing. He meticulously shows that there is no clear ratio of the decision. Except on the point that right to privacy is a fundamental right but (like other fundamental rights) is not absolute, none of the judges who wrote the separate opinions have agreed with one another on any other point. The stark absence of an effort by the judges to engage with each other’s judgement in writing their separate concurrent judgements points to the failure of the highest court of the land to speak clearly in one voice, as one institution.
Malavika Rajkotia approaches the Puttaswamy decision from the vantage point of family law. She focuses on privacy to unravel the layers of patriarchy in court judgments. She explores what she calls deep socialization of judges against liberal positions which make the judges feel morally committed to patriarchy. She worries that the judges don’t see patriarchy as unconstitutional but pass it off as a conditional reflex. Rajkotia argues for a pedagogic spread of the Puttaswamy judgment whereby the court does a Puttaswamy on itself, acquiring a more liberal definition of privacy as liberty, equality and fraternity.
Ashley Tellis rather provocatively brings out the inherent contradictions in the logic of the Supreme Court discourse/rhetoric in the Navtej Johar case. He offers a critical reading of the judgement eulogized and celebrated as India’s moment of glory. According to him, the judgement reiterates a conservative position that lacks real engagement with the homosexual question. Tellis demonstrates how the various opinions are ‘both internally and mutually contradictory.’ They meander in a rather confused fashion understanding sexual orientation as ‘intrinsic, innate and immutable’ as well as constructivist and based on free ‘choice’ without seeing the constitutive contradiction in the two positions. Tellis’ main indictment is that the discussion of sexual orientation and homosexual identity is based on an ‘airy rhetoric’ which ‘occludes any discussion of sex and sexuality.’ Put another way, an honest discussion on why fellatio is ‘unnatural’ would unmask the conservative core of the Koushal and the Navtej Johar far better than the progressive rhetoric of constitutional morality and transformative constitutionalism. Tellis provides a model of reading a legal judgment against the grain – a gift for future students of law, compelling them to engage with the ‘messiness’ and sticky complexities of the social which structurally are a part of us, instead of succumbing to the fantasy of transforming the world by judicial opinions. This becomes the basis of his scathing critique of the ‘constitutional morality’ evoked in the judgment. This static, objective notion, he argues, is an idea ‘disembodied’ from both social and psychic realities.
Amit Bindal begins with a meditation on the Sabarimala case, reflecting on what the entry of women into a temple means, especially when a prohibition was based on mythological grounds. The question here is should a court look at faith and how does it transcend the stereotypes that haunt such judgements. In a classificatory sense, is such a denial of access singular, or does the court group it with other forms of exclusion under the general rubric of untouchability? In ranging over these questions, Bindal explores the ironies and paradoxes of progressive judgements asking, like a literary critic, whether a way of seeing becomes a form of unseeing? Does the court for all its clarity about constitutional morality become mired in community sentiment? The focus is not on the intentions of an outstanding judge but on the consequences of his judgement for gender justice in the long run, when populist rhetoric confronts the realism of feminist struggle.
Latika Vashist pursues the act of deconstruction by examining the logic of child sexuality as a part of the social and legal construction of childhood. Her analysis, located in the deep discourses of psychoanalysis and feminism, discovers a voyeuristic construction of childhood based not on an encounter with the child but through the lenses of other social agenda. The child rarely possesses agency as she confronts the regimes of sexual governmentality. The child becomes more a pretext for a wider social text. She becomes a victim of a rhetoric of victimization. In fact, the child as person disappears in what a reader can call a schizophrenic analysis of childhood, where a child is not an autonomous actor but a Rorschach of the social especially parents, policemen, judges around her. The tragedy of childhood is caught through the legal construction of a child where the child is read through adult categories and experience. The court, rather than the child, becomes the eventual case study of this deeply psychological essay.
Prabha Sridevan’s essay is a reflection on a 1977 Supreme Court decision in Tulasamma v. Shesha Reddy which, she argues, continues to remain significant even today from the perspective of equal property rights of women. There is much to learn from the Supreme Court’s purposive interpretation of the provisions of the Hindu Succession Act that ensured that the woman’s property rights were secured. Sridevan contrasts this case with a 2009 Supreme Court decision where provisions of the same legislation were to be interpreted but the apex court contended itself with a restrictive interpretation, even at the cost of sacrificing equality in proprietary rights. What the essay crucially reveals is that gender justice in the realm of property rights is not a non-negotiable judicial commitment but more of a ‘chancy matter’.
The essays in this issue, in looking at the institutional as well as discursive side of the judiciary, particularly the Supreme Court, point towards the unfinished project of justice. While the court has strained to organically invent legal categories that would realize the constitutional goals – constitutional morality being the most prominent in the recent years – the crisis of the apex court, both in its judicial and administrative functions, has never been more evident. There is no easy way to resolve this crisis, except concerted labour towards an engaged critique of the court.
Alive to the spirit of critique, this issue of Seminar is dedicated to Krishna Iyer’s ‘sparkling fire cracker’ Upendra Baxi, whose life’s work opens up multiple avenues for academics, lawyers, judges and activists in their struggle for justice.
SHIV VISVANATHAN, LATIKA VASHIST and AMIT BINDAL
* Seminar wishes to thank Avantika Tiwari for her assistance in editing this issue.
