Judges and citizens in a constitutional democracy
“[W]hen you are a judge … it’s important to be able to imagine what other people’s lives might be like, lives that your decisions will affect. People who are not only different from you, but also very different from each other. … And this empathy, this ability to envision the practical consequences on one’s contemporaries of a law or a legal decision, seems to me to be a crucial quality in a judge” (Justice Stephen Breyer, The New York Review of Books, November 7, 2013).
We have again found ourselves in the thick of the debate on whether and how literature might figure in the law, through the medium of the court. Justice Breyer speaks eloquently of his fascination for Proust. On home ground, while in 1976 Justice Krishna Iyer invoked Oscar Wilde’s incomparable writing in prison to assert that if a “sex pervert” can write De Profundis in custody, why are we unwilling to grant the capacity for self-reformation to a person convicted of rape? Justice Sudarshan Reddy in 2011 recalled Joseph Conrad’s Heart of Darkness in the celebrated judgment on Salwa Judum and the oppression of adivasis in Chhattisgarh.
There have undoubtedly been other occasions when courts have found that the irrepressibility of literature grants more robust interpretive routes to imagining freedom, empathy and justice under the Constitution.
And the literary by definition spills out of the narrow straitjacket of law. So I have no quarrel with Justice Pratibha Rani quoting Manoj Kumar’s (sorry, Indeevar’s) song Mere Desh Ki Dharti in JNU students’ leader Kanhaiya Kumar’s interim bail order. She believed the verse cradled her judgment in a lyrical lilt. I would sincerely recommend she read Balraj Sahni’s 1972 convocation address at JNU instead.
The problem of course is with a constitutional court using a particularly narrow interpretation of four lines of a cinematic “patriotic” song to frame the entire reasoning in a bail order, with no reference at all to the law that must determine the ruling in the case.
“Spring season is a time when nature becomes green and flower blooms in all colours. This spring why the colour of peace is eluding the prestigious Jawaharlal Nehru University (JNU) situated in the heart of Delhi needs to be answered by its students, faculty members and those managing the affairs of this national university” (para 3, emphasis added).
Even before going into the facts of the case and the prayer before the court, the judge has already determined with no ambiguity that the colour of peace is eluding JNU and it is the university community that is responsible for this. The lawyers for the petitioner, Kanhaiya Kumar, gave evidence of Kanhaiya’s assertion that he did not engage in any activity that derogated the Constitution and, on the other hand, that he acted responsibly as president of the JNU students’ union.
The additional solicitor general produced statements of “witnesses” that “merely because the petitioner is not a signatory on the application form for seeking permission for the programme, is not sufficient to infer that he has nothing to do with the event” (para 22). These witnesses were not willing to be publicly identified, as they feared for their security.
The ASG also conjectured that the petitioner’s speech upholding constitutional values was a deliberate strategy in anticipation of the consequences of his involvement in the “anti-national” event. The judge absorbs the accusation against the petitioner that the events were “anti-national”: Her order speaks of free speech and opposition to the government as an infection threatening amputation (paras 47-48); compares the student, who has been unjustly charged on the basis of ‘proof’ that was either non-existent or doctored (evidence of the falsity of which was before the court), with soldiers dying on borders in wars (not of their making, be it noted); rebukes the petitioner by saying that the court hopes custody has given him the opportunity of introspection (meaning he is deemed guilty of the offence he is accused of and not yet convicted for, para 49); and requires of him an undertaking that he will not actively or passively participate in anti-national activities while out on bail (para 52). What we have, therefore, in the name of a bail order is an untenable rendering of the right to dissent guaranteed under the Constitution — and this by a constitutional court.
An intense debate on the constitutionality of the death penalty in India is going on. If one believes, as I do, that the death penalty is unconstitutional, the severity of the crime does not calibrate the position — there are no exceptions in an abolitionist position. My rejection of retributive judicial action is total. It is a debatable position with supporters, detractors and those that are not quite sure. But debating cases where the death penalty has been awarded and discussing the political circumstances in which sentences have been confirmed in the past can by no stretch of constitutional interpretation be termed anti-national. Speaking about Kashmir, the death penalty, the injustice of the Armed Forces Special Powers Act (which has now been lifted in Tripura) and the resistance of Irom Sharmila, documenting governmental lawlessness and excesses — whether in Kashmir, the north-eastern states, Chhattisgarh or elsewhere — are not anti-national activities. The Supreme Court itself has in Nandini Sundar vs State of Chhattisgarh ruled on the consequences of state impunity in Chhattisgarh. It is perfectly lawful to debate values, politics and governance because every one of us as a citizen has a stake in the Constitution, in good government, the rule of law, and the right to speak about how we think the constitutional dream is best realised — what Habermas calls “constitutional patriotism”.
At the heart of the matter is Section 124-A Indian Penal Code:
“124A. Sedition — Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”
This is a case before a constitutional court. The Constitution must temper the interpretation of laws of the colonial period — a non-negotiable responsibility of a constitutional court. Can we forget that “exciting disaffection towards the government” may well be a capital crime under colonisation, but in a democracy, criticising government, lawlessness, impunity, the absence of due diligence and arbitrariness are at the core of constitutional freedoms. A plain reading of Section 124A IPC tells us quite clearly that it is antithetical to the Constitution of a free country, especially when you have constitutional courts frequently ruling against governments and state authorities and admitting petitions that challenge governmental arbitrariness. How does one reconcile the daily business of a constitutional court with the letter and text of this section? It is these questions that require a creative and robust application of the judicial mind — not questions of whether cinematic “truths” are validated in our everyday actions as citizens.
I rest my concern regarding this bail order by quoting Justice J Chelameswar’s dissenting opinion in the recent NJAC (National Judicial Accountability Commission) case in the Supreme Court, extending his observations to judicial action: “Judiciary is the watchdog of the Constitution and its fundamental values. It is also said to be the lifeblood of constitutionalism in democratic societies…It is a formidable authority necessarily implying an awesome responsibility. A wise exercise of such power requires an efficient and independent Judge…[W]isdom is to perceive with precision whether the legislative [judicial] action struck the constitutionally demanded balance between the larger interests of society and liberties of subjects” [para 18].
Kalpana Kannabiran is professor and director, Council for Social Development, Hyderabad