A judge’s conscience is the last bulwark against the tyranny of the state.
In his book The strange alchemy of life and law, Justice Albie Sachs describes the turmoil that gripped him whenever he had to deliver judgment, especially in important constitutional cases. He dismissed as illusory the idea that reason and logic are all that is needed for good decision-making. Arriving at a judgment, for him, involved an intense struggle between the subjective and objective self of a judge. In the book, he details these struggles by recounting the many cases that have now become the tradition of South Africa’s constitutional history.
A case required him to deal with the claim for the rights of a man accused of torture under the apartheid regime. It was a disturbing case because he himself had been tortured. A bomb placed in his car had exploded, causing him to lose an arm and the sight of one eye. Yet he did not let his sense of revenge outweigh his legal responsibility. The new constitution of the new republic, which he had helped draft, had the protection of human rights at its heart. To defend them was for him a moral and judicial responsibility. It was necessary for the new dawn promised by the Constitution. He settled the case by upholding the rights claimed by the torturer. He felt it was the right thing to do.
In such cases where the accusations are overwhelming, it is difficult to know what is the right thing to do. And yet, for Albie Sachs, it was the only way to listen to his conscience, to allow the struggle between his subjective and objective self to play out before he came to a decision. He had to let his inner voice debate with his judicial persona.
I recalled this story of Albie Sachs, while reflecting on justice and the judicial system in India during our 75th anniversary celebrations of independence, because many like me are beginning to wonder if the judges of our higher judiciary also experience similar struggles before passing judgements. . Somehow it doesn’t feel like they do, but you could be wrong since their personal world is hidden from public view. But their professional world is not and we can therefore look at the judgments rendered or delayed to determine if such a fight has indeed taken place.
On a professional level, the many cases that remain to be heard – from the constitutionality of the suspension of Section 370, to the numerous habeas corpus cases pending before the Supreme Court, to the repeated denial of bail to journalists – make them skeptical about the existence of such a struggle.
South African judge Albie Sachs wrote about the struggle between his subjective and objective self before passing judgment.
Do Indian judges also wrestle with their inner voice of conscience before passing judgements?
Judge PN Bhagwati admitted 30 years later that he had made an error in judgment in the case of ADM Jabalpur v Shiv Kant Shukla.
Judge HR Khanna was the only dissenter in the controversial emergency-era case.
His dissenting note has been hailed as one of the finest pronouncements on freedom in Indian judicial history.
Perhaps some judges, those who are idealistic, experience this. Perhaps by the time judges arrive at the Supreme Court, their idealism is replaced by pragmatism as the demands of justice are 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 consciousness
Recent decisions involving Supreme Court justices have given rise to such cynicism. The acceptance of an appointment to the Rajya Sabha, days after his resignation, by a Chief Justice of India (CJI) simply does not seem fair. Nor is another CJI’s acceptance of the governorship of a state. Even less appropriate is the public address given by a sitting Supreme Court justice who described the outgoing 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 want to maintain the legitimacy of the institution, propriety is not the discussion I want to get into. I want to find out if these judges had to struggle with their inner voice when they arrived at a professional decision.
The case of Justice PN Bhagwati who, as a member of the Supreme Court, wrote a laudatory letter congratulating Indira Gandhi on her return to power in 1980 has been criticized, even by a brother justice like Justice Tulzapurkar, as not being not the right thing to do. But, as I said earlier, ownership is not what I want to think about here. I want to think instead of consciousness.
In an interview published on mylaw.net , 30 years after the ADM Jabalpur case, Judge Bhagwati admitted that he had erred in voting with the majority to accept that it was constitutional to suspend the right to habeas corpus during a state of emergency. He even confessed to going against his conscience, which still seemed to trouble him 30 years later.
The only dissenter
But a judge on this bench listened to his conscience. Judge HR Khanna voted against the decision. He was the only dissenting voice, saying that if the right to enforce Section 21 of the Constitution was suspended, then there would be no protection against the deprivation of life and liberty by the state. The suspension, which the majority approved, he argued, violated the rule of law. He wrote: “The Constitution and 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 by the authority of the court should be silenced and silenced…detention without trial is anathema to all who love personal liberty.
For this dissent, he was replaced for the position of Chief Justice of India, even though he was the most senior judge in the court. When this happened, he resigned immediately.
Judge HR Khanna.
There are three lessons to be learned from this HR Khanna moment of Indian constitutionalism. The first is the expression of dissent. Even during the scary 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 ADM Jabalpur against Shiv Kant Shukla, Judge Khanna writes a dissenting note. His dissent was courageous. He was talking about 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 in protest at his replacement, a departure from the convention where the most senior judge becomes the next CJI on the incumbent’s superannuation. This convention is important to protect the judiciary from the politics of rewards. The resignation reinforced the dignity of the judge. There was therefore no seat or governorship in Rajya Sabha for him. Dignity is important. The third lesson is his listening to the voice of his conscience about what is the right thing to do.
Of all the public officials of a constitutional democracy, it is in the judges that the voice of conscience plays the most valuable role. Every judge must cultivate his 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 around the world. In India too, there is a feeling that ‘rule of law’ has been replaced by ‘rule of law’. Only the conscience of the judge can oppose such a perverse transformation.
Judge HR Khanna held firm. Judge Albie Sachs did too. Judge PN Bhagwati did not. For more than 30 years, he regretted this fact. I believe that an ignored conscience will continue to trouble such a person. Sachs says that years later, after the end of apartheid, he met the man who planted the bomb in his car at a party. Sachs shook his hand. The man left the party and went home and cried for two weeks. There are many tears coming to India.
Peter Ronald deSouza is DD Kosambi Visiting Professor at the University of Goa. Views are personal. He recently co-edited with Rukmini Bhaya Nair Tags for India ( Bloomsbury, 2020).