If The Dialogical Role Of Law Is Forsaken, Law Becomes A Diabolical Instrument: Chandrachud.J At IDIA Conference

“Just as a novelist shapes the characters of his story, Judges rely on facts to craft a narrative that they deem to be most reasonable”, articulated Supreme Court Justice D. Y. Chandrachud at the recently-organized IDIA Law Annual Conference on ‘Law and Storytelling’ in New Delhi.

Justice Chandarchud was delivering the keynote address on “The ‘Narrative’ of Justice”.

“Judges are intuitive reasoners and, I admit, that the thinking is unconscious on several occasions...Judges have a strong sense of which way a case should be decided, but good judges explain their decision...They should be considered artists in their own right. They employ craftsmanship with creativity to a set of facts and articulate them, they engage with their audiences and resonate with their lived experience...Sometimes, we feel that nothing can be done in a particular case as there may have been injustice but no legal violation per se. But the hearing of the story is as significant a part of the healing process as the outcome. Sometimes what is important for an individual is that she was heard in court and not that she lost the case- that the sadness and the injustice, which perhaps the system was too weak to confront, was heard...”, he continued.

The judge iterated that though Precedents serve as a chain of command and coherence which limits the discretion that each judge has, But no matter how authoritative the precedent, the judge still possesses the discretion to “distinguish” it, thanks to the human ability to do what is right and cast way a previous decision that is deemed unacceptable.

He stated that the Law must come to terms with the competing narratives of reality; that the Conflict in the society is not between right and wrong but between right and right, between wrong and wrong, and even between right and power, power of an extent which has its own legitimacy and defines itself as a right because it is in accordance with law.

“As judges, we are faced with the challenge of deciding on two sets of rights. This calls for a  Deeper understanding of the social realities from which the disagreement arises...How can a judge construe varied narratives of identities, of experience and of circumstances, to further justice? This engagement with each narrative doesn't take way the objectivity of the law. The Rule of law requires a consistent application of the prior principles of law, and we are conscious of this as we hear human stories. We know that the hallmark of the rule of law is the determinacy of the law, that there should be certain outcomes from which there may be no aberrations. As a judge, especially in our country, the challenge is that in the endeavour towards consistency in the law, the individual injustices are not lost, which would then question the legitimacy of what we do...”, said the apex Court judge.

“If the dialogical role of the law is forsaken, the law becomes a diabolical instrument, which spells grave danger. The grave danger of interpreting the law without compassion is that you lose the individual narrative that the law is intended to sub-serve...How can a court deal with racial segregation without recounting the lived experiences of the people who were subjected to the travesty? How could the plight of manual  scavengers be deal with without recording the human experiences of social exclusion and boycott?”

Referring to his separate opinion in the recently-rendered five-judge bench verdict on the constitutionality of section 377 of the IPC, he explained,

“In my separate judgment, I recognise the identity of the petitioners. If we had not highlighted the human experiences, a facially-neutral provision of the law would have bypassed judicial scrutiny...One of the arguments advanced in the case was that since there were only a minimum number of prosecutions under the section, there was no point in striking it down. But the real concern there was not of the criminalisation of the act but of the silencing of a set of identities. The retention of the provision perpetrated a culture which would be antithetical to our Constitution. This stereotype given rise to by the provision perpetuated a culture of homophobia making it impossible for the victims of the abuse to access justice...”

“One judge may see the constitution as a break from the colonial past, while others believe in the continuity of the law which, they think, ensures the stability of democratic fabric. Certain Others believe that the constitution is a transformative instrument...Alongside the transfer of political power from the colonial regime to democracy, there was also a movement of social transformation. Unless we view the constitution as a fundamentally transformative institution, we will lose the essence of its values, ideals and its spirit- That it was intended to be for the people...”, averred Justice Chandrachud.

He discussed how untouchability, as contemplated in Article 17 of the Constitution, is caste-based, But in his separate opinion in the Sabarimala Temple case, he held that exclusion of menstruating women from accessing the premises of the temple also qualifies as untouchability- “In most cultures, menstruation is not even spoken about. It amounts to relegating a part of the women’s reproductive experience to non-existence. This taboo around menstruation is an ugly stain on the social change that the Constitution envisages...”

He also canvassed the inter-dominion treaty signed between the governments of India and Pakistan in 1957 for the recovery of the women purported to be abducted when the nations were struck by the travails of the partition- “The Abducted Persons (Recovery and Restoration) Ordinance was enacted as a law in 1949. ‘Abducted persons’ were understood as A set of individuals displaced by partition, including post-abduction children. How could they say if a woman was abducted or had gone with her free will? Would they be accepted by the conservative families on their return? What would be the fate of children whose families has been torn apart? For an impersonal agency, it was easier to not account for these questions and set a time, a date and a figure to solve the problem. Any women living in the company of or in relationship with a man of the other religion after March 1, 1947 was presumed to have been abducted. All marriages and conversions after this date were not to be recognised. No matter what the women and the children said and how much they protested, no matter how real the relationship was, they were silenced.  The state agenda was carried out in the body of the women. The women were not seen as free adults who could exercise their agency but as members of a community, repositories of a family and of the national honour!”

“...the Constitution, as it exists today, is the product of the interaction between three elements- the courts, the people and the text. The people recognise their rights and come to the courts, compelling a consideration of their narratives, some of which may be pre-existing, some may be new and others may have been disregarded so far...India’s narrative is that of diversity and plurality...To deny a narrative is to deny identity. To deny the narrative on which the law is build is to perpretate the violence which resulted in its inception...”, was Justice Chandrachud’s eloquent message.

He recounted an instance when he was sitting as a judge in a Parsi matrimonial court in Bombay where there continue to be jury trials- “An 85-year-old Parsi man had brought divorce proceedings against his wife. He was in the Merchant navy and had been away for a while to tend to a Pension issue. When I asked him why he wanted to divorce his wife, who was roughly the same age as him, at this stage in life, he said that When he had returned to Mumbai, he had found that his living room had been bifurcated with a brick wall and He was shut out of half his house. But what he was really offended by was, he continued, that his wife had walked away with his pet dog and their wedding album. When I asked him what did he care about the album as, after all, he did want a divorce from his wife, he replied, ‘Memories!’”

“Human relationships are not always cast in stone and what you find in courts every day is a human story unfolding. Yesterday, we were dealing with the matter of a man whose house was being demolished to make way for a railway line. The rule is that the government offers you employment if your house is taken away. But the grievance of this man was that since only a strip of his land was acquired, the government deemed him to not be entitled for employment. A strip of land is too small for the power of the government of the Union of India and that seems to be the logic for why he was provided no job. But if your house is wholly taken away, then no matter how small the strip of land it was on, you are eligible to claim employment. So we issued notice to the government to see what can be done. These are things we need to reflect on...What we try to do in the forms of our law is to reduce the human element in the law which masks the essential feature of human relationships- they are not as impersonal as the law would make them out to be; they involve deep issues of prejudice, injustice and wrong doing...”, Justice Chandrachud expressed.

Professor Shamnad Basheer. IDIA Founder

The judge elaborated on American legal philosopher Lon L. Fuller’s case of the Speluncean Explorers, the Central characters of which were five individuals caught in a cruel situation. While on an expedition, they find themselves trapped in a cave without food, on account of a landslide. On their 23rd day there, they were compelled to consume the flesh of a companion of theirs to prevent death by starvation. Ultimately, They managed to escape on the 37th day, in a rescue mission that claimed ten lives.

“Upon their rescue, they were tried for the murder of their fifth companion. According to the defendants, it was the deceased explorer who had suggested the arrangement that the decision as to who should sacrifice their life be taken by a roll of the dice but he had developed cold feet at the end...In the Appeal before a five-judge bench of the fictional Supreme Court of New Garth, Each of the judges spoke of the human side of the story. While some called the explorers ‘Pragmatic survivors’, some regarded them as ‘cold-blooded murderers’ or ‘sinners’. The first judge was of the view that the explorers had found themselves in a tragic situation and that an acknowledgment of the situation could allow for clemency. But he decided to remit the matter to the executive to decide on the question of clemency. We do have judges like this who are hesitant in taking hard decisions...The Second judge observed that the men had found themselves not in a civil society but in a state of nature, that they drew a new charter of government appropriate to their situation and that the law of the Commonwealth was not applicable to them. The legal exception of self defence could apply to them...The third judge reflected that by virtue of the ten heroic lives that were lost in saving these explorers, it would be an absurdity to sentence them to death now. Vacillating between sympathy and disgust on their monstrous nature, he recused himself from the case. Again, we have judges like him too...The fourth judge gave primacy to the wording of the law and convicted the accused for murder. He noted that self-defence would not apply to the accused as the deceased had posed no threat to their lives...The Fifth judge weighed in that common sense tells that the four men have faced more humiliation than most men in a thousand years and that they be acquitted...”, Justice Chandrachud narrated.

“Is this done by our courts when we deal with death-row convicts whose appeals have been dismissed? But when a writ is filed, we say that twenty years in solitary row is sufficient to conclude that death penalty would be contrary to the right to life...The Supreme Court of New Garth was evenly divided, but the sentence was confirmed...The Same set of facts can lead to different narratives. Therefore, the narratives which the judges choose to rely on shape the outcome that appears just to them in a given set of circumstances...One of the cases which has never ceased to trouble me is a death penalty conviction decided by our apex court several years ago, where one member of a bench of three judges held that not only was it not a case of death penalty but that it was a case of acquittal. In such a situation, Will you, by a majority opinion, convict the person (which would be still alright) and sentence him to death?”, he had asked.