<b>T C A Srinivasa-Raghavan:</b> Standing on judgement

Whether or not the lawyers are applying the law correctly is left to the judges to determine ... Once, in class I asked the lecturers what judges' record would be in terms of getting it wrong. No one had any clue

Judges and the judiciary have been in the news of late. Talking of which, 30 years ago, after my MA, I registered for the law course in Delhi University.

As I was already employed, I had to attend evening classes. I completed four of the six semesters and then dropped out because it became too much to do both. Those four semesters taught me how lawyers think.

A few of the fellows who were in college with me went on to become judges. All have now retired. Most of them feel no great sense of achievement - rightly so, I have told them.
 

Bureaucrats apply rules that they themselves make up; lawyers apply the law that is made by someone else. Whether or not the lawyers are applying the law correctly is then left to the judges to determine. The latitude they enjoy while doing so is immense as, therefore, the scope for error.

Once, in class I asked the lecturers what judges' record would be in terms of getting it wrong. No one had any clue.

This led me to wonder about how judges think. So I asked lawyers who said I should read the judgments. The judges said I should read their judgments.

I tried, quite diligently, and quickly discovered that judgments only showed their reasoning in the case at hand. They did not, except occasionally, reveal the way judges generally think about issues.

Autobiographies, stupid

So I opted to read their autobiographies instead. Sadly, there are not many, about 50 or so maybe, most of them no longer in print. I have read about 15, in ascending order from the time of Independence.

Almost all of them make for fascinating reading because they reveal how judges view themselves has changed over the years. There is sometimes a commitment to causes that tend to divide opinion sharply. Controversy is the consequence. A few of them just love it.

Until the 1970s, judges of the Supreme Court mostly thought of themselves as upholders of the existing law. But after the Kesavananda Bharati case in 1971, they acquired an expanded, if not exalted, self-perception as upholders of democracy, defenders of the Constitution and dispensers of equity.

The first two were fine but the last, many people would agree, is pushing it. It is different from justice because what drives the judges then is not what the law is but what it should be. They move from the positive to the normative. The interpretative and activist aspect has come into greater prominence.

Many of these autobiographies are, well, narcissistic. Ipse dixit (Latin for "because I say so") must be a wonderful sensation. Judges, like any newspaper editor, revel in that sensation.

Read on, McDuff

So which autobiographies would I like to recommend to you? Amongst the ones that are available, you should definitely read chief justice M Hidayatullah's autobiography. He has an eye for detail and is quietly sardonic in the telling of anecdotes. Above all, he represents the old school. And, equally importantly, his English is a delight to read.

Former chief justice P N Bhagwati was, while not being a founder of the new normative school, certainly one of its most important soldiers. His rather dry and skimpy book needs to be read only for the justification it provides for judicial activism and the advent of public interest litigation. It was he who got the judiciary to arbitrate between state and citizen.

Equally riveting is judge

M C Chagla's classic Roses in December. Not only does he give you an idea of how judges think but also of the way government functioned. He was education minister for a few years. Probity and integrity had a totally different meaning back then.

Judge V R Krishna Iyer's is worth a quick dip if only to see how a man who caused so much damage thought. The English is not what you would expect it to be but the self-righteousness is. Judge Iyer, by the way, was the man who made the Emergency of 1975 possible. He gave Indira Gandhi a fig leaf of legitimacy after she was unseated by the Allahabad High Court. She, ever a rollicking fighter, paid everyone back by suspending democracy.

Then there is M C Setalvad who, while not ever being a judge, left behind a supremely important legacy. As attorney general, in 1954 he invented the entirely desirable myth that the Indian president was bound by the advice of the Cabinet. This particular aspect was not a part of the Constitution until it was amended some two decades later.