Life and law

Memoirs by three legal practitioners that help to unravel the complexities of delivering justice.

JUDGES and lawyers constitute two key pillars of the justice delivery system anywhere in the world. Because of their proximity to the making of judicial decisions, they are better aware than ordinary citizens of the pulls and pressures behind every court and of the factors that influence every judicial outcome. Therefore, when they write their memoirs in the twilight of their lives, they are likely to throw considerable light on the challenges they faced and how they resolved them.

Of the three memoirs being reviewed here, the first, by Justice Albie Sachs, is an extraordinary account of the life and contributions of a human rights activist who later transformed himself into an outstanding member of the South African Constitutional Court. Justice Sachs started practice as an advocate at the age of 21, defending people charged under racist statutes and repressive security laws. He was raided by the security police, subjected to banning orders restricting his movement, and eventually placed in solitary confinement for two prolonged spells of detention.

In 1966, he went into exile. After spending 11 years doing a doctorate at Sussex and teaching law at Southampton, he worked for a further 11 years in Mozambique as law professor and legal researcher. In 1988, he was seriously injured by a bomb placed in his car by South African security agents; he lost his right arm and the sight in one eye.

In 1990, as a member of the Constitutional Committee and the National Executive of the African National Congress, he took part in the negotiations that led to South Africa becoming a constitutional democracy. After the first democratic elections in 1994, President Nelson Mandela appointed him to serve in the newly established Constitutional Court. Justice Sachs retired from the court in October 2009.

Sachs and the TRC

The illustration on Justice Sachs' book jacket itself is a commentary on the history of the South African struggle against apartheid. Titled The Man Who Sang and the Woman Who Kept Silent, the painting, done by Judith Mason, adorns the South African Constitutional Court as a commemorative work. The renowned painter and graphic artist of symbolic and mythological landscapes, figures and portraits did it on the request of Justice Sachs. The work includes the painting of a dress, which Mason sewed out of discarded blue plastic bags in memory of Phila Ndwandwe, who was shot by the South African security police after being kept naked for weeks in an attempt to make her inform on her comrades. She preserved her dignity by making panties out of a blue plastic bag. This garment was found wrapped around her pelvis when she was exhumed. She simply would not talk, one of the policeman involved in her death testified before the Truth and Reconciliation Commission (TRC), whose contribution Justice Sachs examines in a chapter.

Judith Mason also paid tribute to Harold Sefola, who was electrocuted with two comrades in a field outside Witbank. While waiting to die, Sefola requested that he be allowed to sing Nkosi Sikelel' iAfrica, considered the unofficial national anthem of South Africa during the apartheid regime, representing the oppressed.

The experience with the inhuman nature of torture as a technique of interrogation of suspects made Justice Sachs and his colleagues take a principled stand against torture in the Constitutional Court. One of the questions which the court faced early in its history was whether persons accused of extremely wicked crimes were entitled to claim the protection of fundamental rights accorded by the very legal order they had apparently set out to destroy. The court answered the question in the affirmative in some of the cases that came before it. The court held unanimously in its very first case that the death sentence violated the right to dignity and the right not to be subjected to cruel, inhuman and degrading punishment.

Early in the book, Justice Sachs makes the baffling statement that every judgment he wrote was a lie against itself. He then clarifies that there is an enormous incongruity between the surface character of his judgments and the actual intellectual programme in terms of which they have been devised, created, constructed or formalised. This, he says, is the falsity: the pretence implicit in the presentation of a judgment that it has been written exactly in the way it appears. Completely left out of account is the complexity of the process by which the final reasoned decision has been arrived at, he explains.

Justice Sachs' exposition of the TRC holds important lessons for India. First, the South African Constitution itself provided for a right to amnesty for offences committed in the course of the political conflicts of the past, but it stated that the right could only be enjoyed under terms and conditions to be established by the new parliament. The new parliament then provided that a TRC would be the mechanism for determining on a case-by-case basis how amnesty could be granted. The TRC's objective was to examine the crimes that had been committed and hidden during the apartheid period, mainly those committed in defence of apartheid, and also violations of human rights perpetrated in the struggle against apartheid. Many testified in various parts of the country to what had happened to them and their families, and many sent in written testimonies.

The testimony was televised, and the nation became witness to what had happened and heard the stories directly from the mouths of the persons concerned. Neither compensation nor punishment was at issue. They simply used the opportunity to speak the truth and have their pain acknowledged. The TRC helped to explain the conditions that permitted gross injustice to flourish so as to ensure that these things do not happen again.

One of the huge achievements of the TRC, Justice Sachs points out, was to eliminate denial. Not even the most ardent defenders of the old order could deny the evil that had happened. As he explains: If you are dealing with large episodes, the main concern is not punishment or compensation after due process of law, but to achieve an understanding and acknowledgement by society of what happened so that the healing process can really start.

Justice Sachs justifies the TRC's legitimacy thus: Just as even in this highly marketised world, we still have a right to altruism so even in a legal and moral universe based on accountability, there is a right to forgive. The problem is that the right to forgive can only be enjoyed if the perpetrators acknowledge their wrongfulness.

In a thought-provoking chapter, Reason and Passion, Justice Sachs endorses the view that judging is a complex interplay of forces rational and emotional, conscious and unconscious by which no judge could remain unaffected. When he found people in other countries quoting from his judgments, the passages they chose were precisely those that had emanated from the most subliminal regions of his consciousness in the least judicial of circumstances. Those passages were the least rationally induced, the least deliberately thought-through phrase in the whole of his judgment, and yet it travelled the best, as he puts it.

Here is one such statement in his judgment on capital punishment: If the killer is executed, he or she achieves a perverse moral victory because by killing the killer, the state reduces public abhorrence at the idea of the deliberate taking of human life.

Here is another: The more harmful the crime and the greater the public need to secure a conviction, the more important it is to uphold the presumption of innocence for the individual accused.

Justice Sachs draws two conclusions from this: One, passionate life experiences will inevitably insinuate themselves to grapple profoundly with dispassionate reasoning when legal pronouncements are being prepared. Second, the effect of life experience on the judicial mind will not be linear and predictable.

Growing up in an actively anti-religious home could have made him innately disdainful of claims made for protection of religious conscience in the public sphere. Yet, if anything, the actual experience of being a non-believing child in a religious school environment seems to have predisposed him strongly towards supporting the rights of conscience. Thus, in a judgment he emphasised the duty of the state to accommodate, where reasonably possible, exemptions for religious believers from general law.

In another chapter, Justice Sachs suggests that if pure legal reasoning is all that is involved, it would be correct to speak about there possibly being only one right answer to a question. Therefore, what he thinks is at stake, while writing a judgment, is not the achievement of certainty for all time but the accomplishment of maximum persuasiveness at that moment.

The South African Constitutional Court, like the Indian Supreme Court, has grappled with the question of giving effect to socio-economic rights, which are generally not justiciable. In Mrs Grootbroom's case, in which the right of access to adequate housing was at issue, the court was concerned with securing jurisprudential foundation for responding to a people who lacked minimal housing. In a unanimous judgment, the court held that the key concept in the provision on access to adequate housing was the obligation on the state to take reasonable legislative and other measures progressively to realise the right. Justice Sachs reveals that he and his colleagues felt that the concept of reasonable measures was one capable of being adjudicated on by the court.

Thus the court held that the housing programme of the state was unreasonable and in conflict with the Constitution to the extent that it failed to make reasonable provision within its available resources for people with no access to land and no roof over their heads, and who were living in intolerable conditions or crisis situations. Having made this declaration, the court left it to the state to decide how best in practice it could remedy its failure.

Justice Sachs tells readers that his life experiences entered into his legal consciousness in multiple ways, some very obvious and others quite mysterious. As a judge, he had to identify issues, weigh the different considerations involved, arrive at a proportionately balanced outcome that took account of the context and the constitutional values at stake and share with the public all the reasoning that led to the final product.

Much of what Justice Sachs says in his book has curious resonance for an Indian reader because the challenges faced by the judiciaries in India and South Africa are, to some extent, similar. Besides, India's contribution to the evolution of the South African Constitutional Court has been significant. Although some of India's former judges have written their memoirs after completing their terms, they have not been as candid as Justice Sachs, and this gap in our judicial history remained to be filled.

Nariman's candour

That is why when the eminent Indian advocate Fali S. Nariman, the author of the second book under review, lucidly recollected events in his 60-year-long advocacy with remarkable candour and objectivity, it more than filled that gap. Nariman is a senior advocate in the Supreme Court. He is now in his early eighties and has learnt to consider successes and losses in litigation with equanimity. The media consider him a jurist and an expert on constitutional matters. Judges as well as the non-legal public listen to him with respect even if they disagree with him.

Nariman declined the offer of judgeship in the Bombay High Court at the age of 38, and in the Supreme Court at the age of 53. He would have been the Chief Justice of India for a very long period had he accepted the offer, as Supreme Court Judges retire at 65. His reluctance as a young advocate to forgo huge financial earnings, and the feeling that he did not have the patience to be a good judge made him decline the offers on both the occasions. In his autobiography, however, he more than makes up for the lack of these attributes.

Like other observers, Nariman too is fascinated by the Supreme Court's judgment in the Keshavanand Bharati case in 1973 when a 13-judge Bench by a majority of 7:6 propounded that Parliament could not amend the Constitution's basic features. He says that the basic structure theory was the response of an anxious, activist court to the experience of the working of the Indian Constitution during the first 23 years, and it remains today an auxiliary precaution against a possible tidal wave of majoritarian rule.

Nariman holds the distinction of being the only public official to resign close on the heels of the declaration of the Emergency in June 1975. He was Additional Solicitor General (ASG) at that time, and because of the stringent censorship prevailing then, his resignation hardly made news. His resignation was followed by his social and political ostracism, but he and his family remained unperturbed. Continuing as the ASG would have forced him to defend the government in cases before the court against his conscience.

His sacrifice could only be compared to that of Justice H.R. Khanna, who was the lone dissenter in the Supreme Court's judgment in the habeas corpus case during the Emergency. As a member of the five-judge Bench which heard the matter, Justice Khanna found merit in the judgments of the nine High Courts which took the more liberal view against arbitrary arrests and mala fide detentions. The majority Bench of the Supreme Court, however, proclaimed its helplessness if the government suspended fundamental rights under Article 21 (right to life and liberty) during an emergency.

Nariman says: It stimulated in right-thinking people the realisation that you could not save freedoms by merely relying on the Constitution, and expecting Constitutional functionaries to perform their allotted tasks. There had to be a public feeling, an upsurge, about cherished rights....

Nariman's credentials as a defender of human rights came under a cloud when he defended Union Carbide Corporation as its lead counsel in the civil litigation arising out of the 1984 Bhopal gas disaster. Nariman reproduces in full the criticism of his role and his reply to it as they originally appeared in the Human Rights Tribune in 1992 and in Seminar in December 2004.

The legal academic Upendra Baxi, who replied to Nariman's article in Seminar, felt that it would be erroneous to consider Nariman's contribution as a veiled apology for his advocacy of an unjust cause and an unscrupulous client. In his contribution, Nariman had hinted that he could have been wrong in attacking the Madhya Pradesh High Court's judgment before the Supreme Court for fixing a higher compensation in the grant of interim relief in the suit for damages for tort. Further exchange followed, with Nariman responding to Baxi's criticism, which was duly carried by Seminar.

Nariman deserves credit for giving the last word to Baxi in this unseemly exchange in his book. Baxi's hitherto unpublished reply to Nariman's response was in the nature of private correspondence, and Nariman felt at liberty to publish it.

Having said that, however, readers would be disappointed to find that Nariman decided not to add anything at all to this correspondence, as it still leaves crucial issues unanswered. As Baxi's reply to Nariman shows, how the Supreme Court-mediated settlement orders in 1989 (fixing the final civil settlement at $470 million) were eventually accomplished remains a mystery.

Vicaji Taraporevala, author of the third book under review, was born in 1923 and is six years older than Nariman. As a senior advocate based in Mumbai, he had the advantage of interacting with several legal luminaries. His book is a compilation of stories, anecdotes and incidents, which have been included only because of their sharp wit and humour. As the book's blurb says, some of the incidents included in it highlight the role of destiny in our lives, and why chance favours the prepared mind and how persistence and the will to adapt to the vicissitudes of life are qualities we need to imbibe from the precedents set by some of India's finest legal minds. Nariman, in his book, describes the author as a good chancery lawyer who ably conducted his client's cases.