In his book The Strange Alchemy of Life and Law, Justice Albie Sachs describes the restlessness that gripped him every time he had to deliver a judgment, particularly in important constitutional cases. He dismissed as illusory the idea that reason and logic are all that is required for good decision-making. Arriving at a judgment, for him, involved an intense struggle between a judge’s subjective and objective selves. In the book he details such struggles as he recounts the many cases that have now become the lore of South Africa’s constitutional history.
The Strange Alchemy of Life and Law by Justice Albie Sachs | Photo Credit: By special arrangement
One case required him to deal with the rights claim of a man accused of torture during the apartheid regime. It was a soul-troubling case since he himself had been tortured. A bomb placed in his car had exploded, causing him to lose an arm and vision in one eye. Yet he did not allow his feeling of vengeance to override his judicial responsibility. The new constitution of the new republic, which he had helped draft, had at its core the protection of human rights. Upholding them was for him a moral and judicial responsibility. It was necessary for the new dawn promised by the Constitution. He decided the case by granting the rights claims of the torturer. He felt it was the right thing to do.
In such cases where the accusations are damning, it is a challenge to know what the right thing to do is. And yet for Albie Sachs it was the only way, to listen to his conscience, to allow the struggle between his subjective and objective selves to play out before he arrived at a decision. He had to let his inner voice debate with his judicial persona.
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I have recalled this story of Albie Sachs, when reflecting on justice and the judiciary in India during the celebrations of our 75th year of Independence, because many like me are beginning to wonder if the judges in our higher judiciary also experience similar struggles before pronouncing judgments. Somehow one does not get the feeling that they do but one could be wrong since their personal world is hidden from public view. But their professional world is not and so we can look at the judgments delivered or delayed to determine if such a struggle had indeed taken place.
At the professional level the many cases that remain to be heard—from the constitutionality of the suspension of Article 370, to the many habeas corpus cases pending in the Supreme Court, to the repeated denial of bail to journalists—makes one sceptical about the existence of such a struggle.
Highlights
- South African judge Albie Sachs famously wrote about the struggle between his subjective and objective selves before pronouncing a judgment.
- Do Indian judges also struggle with their inner voice of conscience before pronouncing judgments?
- Justice P.N. Bhagwati admitted 30 years later that he had erred in judgment in the ADM Jabalpur vs Shiv Kant Shukla case.
- Justice H.R. Khanna was the only one to dissent in this controversial Emergency-era case.
- His dissenting note has been hailed as one of the finest pronouncements on freedom in Indian judicial history.
Perhaps only a few judges, those that are idealistic, experience them. Perhaps by the time judges reach the Supreme Court their idealism gets replaced by a pragmatism as the demands of justice get replaced by the routines of positive law. Prayer and meditation were necessary for Bapuji to retain the power of the inner voice.
The place of conscience
Recent decisions involving judges of the Supreme Court have given grounds for such cynicism. The acceptance of a nomination to the Rajya Sabha, within a few days of demitting office, by a Chief Justice of India (CJI) just does not seem right. Nor does the acceptance by another CJI of the governorship of a State. Even less appropriate is the public speech given by a serving judge of the Supreme Court who described the incumbent Prime Minister as a “versatile genius who acts globally and thinks locally”. While these are questions of propriety, of what judges should and should not do if they are to sustain the legitimacy of the institution, propriety is not the discussion that I want to get into. I want to discover if these judges had to struggle with their inner voice when they arrived at a professional decision.
Justice P. N. Bhagwati. | Photo Credit: THE HINDU ARCHIVES
The case of Justice P.N. Bhagwati who, as a member of the Supreme Court, wrote a glowing letter congratulating Indira Gandhi on her return to power in 1980 has been criticised, even by a brother judge such as Justice Tulzapurkar, as not the proper thing to do. But, as I stated earlier, propriety is not what I want to reflect on here. I want to think about the place of conscience.
In an interview published in mylaw.net, 30 years after the ADM Jabalpur case, Justice Bhagwati acknowledged that he had erred in voting with the majority to accept that it was constitutional to suspend the right of habeas corpus during the Emergency. He even admitted that he went against his conscience, which still seemed to be troubling him 30 years later.
The lone dissenter
But one judge on that bench listened to his conscience. Justice H.R. Khanna voted against the decision. He was the lone voice of dissent, arguing that if the right to enforce Article 21 of the Constitution was suspended, then there would be no protections against the deprivation of life and liberty by the state. The suspension, that the majority was endorsing, he held, was against the rule of law. He wrote: “The Constitution and the laws of India do not permit life and liberty to be at the mercy of the absolute power of the Executive. . . . What is at stake is the rule of law. The question is whether the law speaking through the authority of the court shall be silenced and rendered mute... detention without trial is an anathema to all those who love personal liberty.”
For this dissent he was superseded for the position of Chief Justice of India even though he was the most senior judge in the court. When that happened, he resigned immediately.
Justice H.R. Khanna. | Photo Credit: The Hindu Archives
There are three lessons from this H.R. Khanna moment of Indian constitutionalism. The first is the expression of dissent. Even during the fearful times of the Emergency, when the Executive had unchallenged power, and when the majority of four judges on a bench of five supported the suspension of liberties, in what is known as the ADM Jabalpur vs Shiv Kant Shukla case, Justice Khanna wrote a note of dissent. His dissent was courageous. It spoke of character. His dissenting note has been hailed as one of the finest pronouncements on freedom in Indian judicial history.
The second lesson is the tendering of his resignation as a protest at being superseded, a departure from convention where the most senior judge becomes the next CJI on the superannuation of the incumbent. This convention is important to protect the judiciary from the politics of rewards. Resignation reinforced the dignity of the judge. There was, therefore, no Rajya Sabha seat or governorship for him. Dignity is important. The third lesson is his listening to the voice of his conscience on what is the right thing to do.
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Of all the public officials in a constitutional democracy, it is in the judges where the voice of conscience plays the most valuable role. Every judge must cultivate their conscience. They are the last bulwark against the tyranny of the state. Judges cannot allow their inner voice to atrophy as we suspect is beginning to happen in many democracies across the world. In India, too, there is the feeling that the “rule of law” has been replaced by the “rule by law”. It is only the conscience of the judge that can stand against such perverse transformation.
Justice H.R. Khanna stood his ground. Justice Albie Sachs did too. Justice P.N. Bhagwati did not. For 30-plus years he regretted the fact. I do believe that a conscience that is ignored will continue to trouble such a person. Sachs recounts that years later, after apartheid had ended, he met, at a party, the man who had planted the bomb in his car. Sachs shook his hand. The man left the party and went home and cried for two weeks. There are many tears coming in India.
Peter Ronald deSouza is the D.D. Kosambi Visiting Professor at Goa University. Views are personal. He has recently co-edited with Rukmini Bhaya Nair Keywords for India(Bloomsbury, 2020).
