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«1 THE RUNAWAY JUDGMENT THE RUNAWAY JUDGMENT: LAW AS LITERATURE, COURTCRAFT AND CONSTITUTIONAL VISIONS KALYANI RAMNATH* Court judgments are a ...»

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THE RUNAWAY JUDGMENT

THE RUNAWAY JUDGMENT: LAW AS LITERATURE,

COURTCRAFT AND CONSTITUTIONAL VISIONS

KALYANI RAMNATH*

Court judgments are a compelling genre to engage with – they

puzzle and they punish; they enforce and they entertain. Using

insights from scholarship on law-as-literature, an attempt is

made to inquire into ways in which judgments may be read and how different readings might be relevant for legal practice.

Examples of constitutional interpretation by the Supreme Court in India are used to demonstrate how judgments are instrumental in the shaping of public discourse, through speaking to multiple audiences. By looking at judgments perceived as “suffering” from literary excesses or judges whose writing was criticised for being revolutionar y but “unnecessarily” verbose, it is argued that judgments are to be read taking judicial observations seriously – as expressions of constitutional visions that are built up over time. The rhetoric in a judgment may also create a legal legacy of its own, even if a suitable remedy is not obtained in a particular case where it is employed. This Article explores the idea that judgments are public documents and that they are read by multiple audiences and different readers might arrive at different readings, all of which are equally valuable. Finally, unlike a literary or a philosophical text, a judgment records the taking away of someone’s life and liberty. As we read judicial texts, it is important to note not only who constitutional language accommodates, but also its absences, omissions and silences.

I. INTRODUCTION Judgments are a challenging genre of writing to engage with.

They puzzle and they punish, they enforce and they entertain. A thousand lines of judicial text often states too little; ten lines, too much. Although * B.A., LL.B. (Hons.) (NLSIU), LL.M. (Yale).

2 JOURNAL OF INDIAN LAW AND SOCIETY [Vol. 3 : Winter] written by legal experts in technical language, both the reason and consequence of judgments is for a general audience. Guidelines on judgment writing have, therefore, traditionally emphasized simplicity and clarity.1 A judgment is berated when it slips up, inserting explicit judicial observations on society, economy and polity or commenting on the moral degradation of the citizens under its care. When reading a judgment, a first year law student is taught to distinguish between the ratio decidendi or the part of the judgment that has value asa legal precedent and the obiter dicta, which is everything else. We are taught to disregard the latter. Thus begins our instruction in the black letter law tradition; in our understanding of laws as merely rules. I will use “judicial observations” in the Article to refer to comments, remarks, citations and statements that the judges make in relation to the case at hand, but which appear irrelevant to the “legal” questions.2 Very often, these observations are mistaken as courts indulging in policymaking. This There are several well known expositions on this topic. See generally Richard Posner, Judges’ Writing Styles (and do they matter?), 62 U. CHI. L. REV. 1421, (1995); see also Michael Kirby, On the Writing of Judgments, 64 AUSTL. L. J. 691 (1990); see also Justice Sunil Ambwani, Writing Judgments: Comparative Models, Presentation at the National Judicial Academy, Bhopal (2006), available at http://districtcourtallahabad.up.nic.in/ articles/writing%20judgment.pdf (“It is no longer prudent to write a long and verbose judgment, with uncontrolled expressions and citations”); see also Justice T.S. Sivagnanam, The Salient Features of the Art of Writing Orders and Judgments, Tamil Nadu State Judicial Academy, Chennai (2010), available at http:// www.hcmadras.tn.nic.in/jacademy/articles/IA%20Particular%20ABJ%20Sec% 2047%20CPC%20and%20EA%20under%20O21%20CPC.pdf (“Judges should see that their pronouncements are judicial in nature and do not normally depart from sobriety, moderation and reserve. They should refrain from being sarcastic in their judgments. The language of the judgment should be entirely devoid of anything approaching factiousness. Be precise, make your sentences short and adopt simple language.”); see also Justice B.G. Harindranath, Art of Writing Judgments, Karnataka Judicial Academy (2004) (“What is the most important component of good judgment writing? To my mind, it is clarity. If your ideas are clear then you will be able to express them clearly. Unclear judgments are likely to be long-winded, indistinct, pretentious, and boring”).

BLACK’S LAW DICTIONARY 1102 (8thed. 2004) (defining “obiter dicta”); P. RAMANATHA AIYAR, ADVANCED LAW LEXICON 3272 (2005) (defining both “obiter dicta” and “obiter observation”)(I include both in the term “judicial observation” as opposed to a “ruling” or a “direction” in a judgment, which are considered part of binding precedent.

THE RUNAWAY JUDGMENT

Article attempts to redeem such judicial observations in the text of a judgment, but also goes further in order to see the possibilities for a practice of law that arise from regarding judgments as literature.

Although the idea that judicial opinions can be read as a form of social commentary is by now fairly well established, as students of law, we continue to read and comment upon judgments in the classroom only as interpreting a statutory or constitutional provision or settling the dispute between parties.3 This Article attempts to arrive at a formulation of how this might be done differently. The judgments of the Indian Supreme Court (“the Court”) are perhaps a more interesting case than most to explore this question. Not only does it deal with numerous and diverse cases, its judgments often are a testament to its involvement in the everyday public and private lives. I take up the example of constitutional interpretation, as it is instrumental in the shaping of public discourse and speaks to multiple audiences. These judgments may be read not merely as judicial orders directed at the parties in the case but as writing that inspires, creates and shapes textual and actual realities A contemporary institutional history of Indian courts may well draw upon such judgments, as it has been in the case of colonial court cases.); see e.g. PARTHA

CHATTERJEE, A PRINCELY IMPOSTER? : THE STRANGE AND UNIVERSAL HISTORY OF





KUMAR OF BHAWAL (2002); see generally Mattison Mines, Courts of Law and Styles of Self in Eighteenth-Century Madras, 35 MOD. ASIAN STUD. 33 (2001); see generally Neil Brimnes, Beyond Colonial Law: Indigenous Litigation and the Contestation of Property in the Mayor’s Court in Late Eighteenth Century Madras, 37 MOD. ASIAN STUD. 513 (2003); see generally Matthew Groves, Law, Religion and Public Order in Colonial India:

Contextualising the 1887 Allahabad High Court Case on ‘Sacred’ Cows, 33 S. ASIA: J. S.

ASIAN STUD. 87 (2010);Excellent accounts of the working of the Indian Constitution exist in POLITICS AND ETHICS OF THE INDIAN CONSTITUTION (Rajeev Bhargava ed., 2008), INDIA’S LIVING CONSTITUTION (R. Sudarshanetal.eds., 2005) and GRANVILLE

AUSTIN, WORKING A DEMOCRATIC CONSTITUTION: THE INDIAN EXPERIENCE (1999)

(although scholarship exclusively on the politics surrounding a Supreme Court judgment is rare.); A recent book-length attempt for a single judicial decision is

T.R. ANDHYARUJINA, THE KESAVANANDA BHARATI CASE: THE UNTOLD STORY OF THE

STRUGGLE FOR SUPREMACY BY SUPREME COURT AND PARLIAMENT (2011). Judicial autobiographies have also often referred to the dynamics behind a particular decision. See e.g. FALI S. NARIMAN, BEFORE MEMORY FADES (2010); see generally LEILA SETH, ON BALANCE (2003) (discussing the politics behind ADM Jabalpur v. Shivakant Shukla A.I.R. 1976 S.C. 1207).

4 JOURNAL OF INDIAN LAW AND SOCIETY [Vol. 3 : Winter] of governments and citizens.4 This Article takes up the July 2011 judgment in the case of Nandini Sundar v. State of Chhattisgarh5 (alternatively referred to as “the Salwa Judum judgment”) as its starting point, given the extraordinary attention paid to the judicial observations in this case. To further explore this idea, it also uses the text of various well-known judgments on Fundamental Rights by the Court and the observations made in those cases, some of which were considered “unnecessary”. This Article highlights two dimensions to these “runaway” judgments. First, I describe ways in which they can be read to articulate constitutional visions at a particular point in the Court’s history – its place and importance vis-à-vis its public. Second, I note that its reading by multiple audiences may create possibilities to formulate strategies by which laws and courts can be a site for resistance and empowerment. The cases selected in this Article are merely illustrative, and meant only to serve as a template for a similar analysis with other judgment texts.

In pointing to the use of judicial observations, this Article benefits greatly from the insights provided by the law and literature movement. One of its aspects – law as literature – considers law to be capable of being subject to the kind of critique that literature is, by identifying the use of rhetoric, the construction of narratives (in a trial, by lawyers, and by the judge) and so on.6 Part II of this Article draws from the fact that judicial opinions indulge in a particular kind of In an Indian context, see Upendra Baxi, Judicial Discourse: Dialectics of the Face and the Mask, 35 J. INDIA L. INST. 1, 5 (1993).

(2011) 7 S.C.C. 547.

See e.g. GUYORA BINDER, LAW AND LITERATURE, JOHNS HOPKINS GUIDE TO LITERARY

THEORY AND CRITICISM (Michael Groden et al eds., 2006) (For a good historical survey of the history of the law and literature movement in the United States);

Kenji Yoshino, What’s Past is Prologue: Precedent in Literature and Law, 104 YALE L.J.

471, 472 – 477 (1994); Some of the prominent texts of the law and literature movement in the United States includes JAMES BOYD WHITE, THE LEGAL IMAGINATION (1973); Robert Weisberg, The Law-Literature Enterprise, 1 YALE J. L. & HUMAN. 1 (1988); RICHARD POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION (1988); Jane Barron, The Rhetoric of law and literature, 26 CARDOZO L. REV.

2273 (2005). Scholars that have engaged with law-as-literature in the Indian context include Lawrence Liang, In the Field of Pain and Death: Law, Literature and Violence

THE RUNAWAY JUDGMENT

storytelling about “the” constitutional matter at hand– the cast, the motives and the moral of the story being discernable from the kinds of facts presented in the beginning of the judgment, the framing of the legal issues pointing towards the heroes and villains and the final ruling determining who would “pay” for the violation of established rules of societal conduct. At the Court, the chain novel is attempted to be written, very often based on the judicial observations made in a case.7 Part III discusses how the rhetoric in judicial observations creates a legacy all its own, even when the remedies offered by the Court are unsatisfactory.

They provide an opportunity to hone legal strategies for those attempting to secure remedies through courts, or look for opportunities outside of the law. This Article explores the idea that judgments are public documents read by multiple audiences. The focus is on the value of these readings for a practice of law. By “practice”, I imply lawyering in and around courtrooms, classrooms and social movements i.e. similar to what Baxi refers to as cultural software around constitutions.8 I want to emphasize that what is at issue is neither literary form nor aesthetics of judgment writing or individual judges’ styles, which may quite possibly form the potential subject matter of another Article. This question is only briefly considered in the final Part.

II. NANDINI SUNDAR AND CONSTITUTIONAL VISIONS

Filed as a public interest litigation (PIL) petition in 2007 by Nandini Sundar, Ramachandra Guha and EAS Sharma, all eminent (NLSIU Seminar Course Materials available at http://www.altlawforum.org/ education/law-literature-and-violence/in-a-field-of-pain-and-death-syllabus); Maya Dodd, (SeeArchives of Democracy (Ph.D. Dissertation, Stanford University, 2006);

Jaya Nandita Kasibatla, Constituting the Exception: Law, Literature and the State of Emergency in Postcolonial India (Ph.D. Dissertation, Duke University, 2005);

Rajeswari Sunderrajan, Secularism and Citizenship in India: A View from Literature, Paper presented at the first LASSnet Conference (2009); Shrimoyee Nandini Ghosh, The Erotics of Helplessness: Reading the Case of the Bombay Bar Girls, Paper presented at the first LASSnet Conference (2009).

The chain novel idea is discussed in RONALD DWORKIN, LAW’S EMPIRE 228 - 238 (1986).

Upendra Baxi, Outline of a Theory of Practice of Indian Constitutionalism in POLITICS AND ETHICS OF THE INDIAN CONSTITUTION 100, 101 (Rajeev Bhargava ed., 2008).

6 JOURNAL OF INDIAN LAW AND SOCIETY [Vol. 3 : Winter] scholars and publicly engaged citizens, Nandini Sundar expressed concerns with the state-sponsored terror campaign known as the Salwa Judum against Naxalites in Dantewada in Chhattisgarh, India.9 The petition directed the Court’s attention to the legislative framework, under the cover of which these activities were being carried out. The provisions of the Chhattisgarh Police Act, 2007 (enacted two years after the campaign ostensibly began) were more broad-ranging than that of the central Indian Police Act, 1861. Under both laws, provisions existed for the appointment of locals as special police officers (SPO).

Unlike the Indian Police Act, where SPOs are only to be appointed in case of temporary disturbances (such as a riot or an unlawful assembly), and only for the pendency of the emergency, the Chhattisgarh Act did not specify any such circumstances, nor did it specify what qualifications one must possess before one could be appointed as an SPO.10 The petition argued, inter alia, that the Salwa Judum campaign comprised a large number of SPOs appointed in this fashion, and that the appointments had to be quashed.



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