Political Finance and the Poor in India

Introduction

[This post has been taken from the term paper authored for my Law and Poverty course taught at NALSAR. During the semester, we were tutored and lectured by Prof Amita Dhanda, Justice S Muralidhar, and Prof Upendra Baxi]

          Elections in India have never been so mammoth, gigantic and encompassing. Notably, the 2014 General Election to the lower house of the Indian Parliament (Lok Sabha), positing an electorate of more than 800 million adults, holds the unique distinction of being the largest democratic exercise in the world.[1]

            At the same time, elections have never been more expensive than they are today. ‘Big Money,’[2] which fuels and propels the electoral wheels is despised for its notoriety and exclusivity by the civil society and those who repose strong faith in substantive freedom and fairness in elections. The prima facie unsurpassable divide between the ‘haves’ and the ‘have nots’, when it manifests itself in the largest democracy of the world, must instruct us to go beyond mere numbers and figures to find out more about the qualitative nature of elections, democracy and republicanism in India.

            Political finance these days can give a tough competition to any stock indices or figures.[3] The only role ascribed to a poor in an election is that of a voter, one whose apathy lies in standing in a queue to vote for a person who has probably bribed him and purchased his franchise overnight. While this may be a little too barbaric to assume for all voters to have undergone, it is nonetheless not untrue that voters are susceptible to mass waves where when they do not know where to go, just proceed in the direction where the herd seems to be moving. Such populist outcries are often an outcome of high election spending and political financing.[4]

            It is in the backdrop of such state of affairs that proposals such as state funding of political parties have gained prominence. This paper is divided into six parts:

  • The first part will trace the way in which electoral processes are subjected to constitutional supervision and legal regulation.
  • The second part will seek to delineate and exposit the fundamental aspects relating to funding of political parties contesting elections from various sources and its regulation thereto.
  • The third part shall look at the ways in which the policy suggestion of state funding of elections has come about to be articulated in the Indian polity and legal system.
  • The fourth part shall look at the qualitative demography of Indian elections and the relationship between the elected and the electorate.
  • The fifth part seeks to answer the question: What do elections convey about poverty?
  • The sixth and the most important part shall attempt at demystifying the implications that state funding may have at the involvement and role that the lower rungs of the society could perhaps play in the electoral process once state takes up this new domain of exchequer.

Legal Regulation of Electioneering

        Elections are constitutionally mandated recurrent acts which are aimed at the formation of legislatures, and consequentially, of the government. An independent body, called the Election Commission of India is constitutionally provided for in Article 324 of the Constitution of India to conduct free and fair elections. This commission seeks to ensure transparency, fairness, just and regular elections in the democratic setting.[5]

        Finance is a crucial pillar required in the conduct of elections[6]. The major stakeholders who deal with money are the candidates and the political parties. It is impossible to conceive of elections without expenditure on the part of these two stakeholders.[7] Therefore, as expends are an inevitable feature of electoral process, it is imperative to regulate and monitor the channelization of funds and mobilization of resources in the same.[8] Fairness commands that money from illegal activities, which is not accounted for in the taxation scheme does not make its inroads into elections and thereby vitiate their purity and sanctity. Similarly, too much expenditure in elections, the source of which would somehow be in the financial big wigs and corporate houses is seen as an onslaught on the independence and integrity of a true democracy where the will of the people will take a back seat and the will of the rich and well-to-do will rule the roost.

           The electoral system as it stands today, pivots on a balance where the fulcrum makes some compromises. While the idea of donation from corporates is not rejected in wholesale at the outset, certain limits have been imposed in terms of spending by candidates contesting elections.[9] As per the Finance Act, 2017[10] donors can from now on use electoral bonds to make anonymous donations. This is done with the intent of protecting donors form any backlash from a party for whom they did not make any donation. The recent statute also does away with the limits prescribed for corporate funding. It would be trite, but nonetheless noteworthy to point that quantitative limits on spending by candidates is flouted with immunity sans any due regard to “legalism.” Thus, legal regulation of electioneering is faced with a major concern on how to implement these regulatory checks at the grass root level on the field. Thus, it must be noted that the role of law vis-à-vis politically colored processes such as elections is limited by constraints such as ignorance, high-handedness, and a lack of will power.

Regulation of Political Finance: Key Aspects

           The Indian law pertaining to election finance traverses across inter-sections of election law, company law, and taxation law. Firstly, we have the Representation of People Act, 1951[11] coupled with Conduct of Election Rules, 1961 which mandates the parties to disclose and act on certain occasions of receipt of donations. Secondly, The Companies Act, 2013[12] alongside Foreign Contribution (Regulation) Act provides for the form of companies which could donate to the political parties. Thirdly, the Income Tax Act, 1961[13] operates to carve out some tax exemptions in the favor of political parties and donors.

          Section 77 of the Representation of People Act, 1951 mandates every candidate contesting an election to maintain a proper account of all expenses incurred by him or by his agent in connection with or in furtherance of his election campaign. By virtue of Conduct of Elections (Amendment) Rules, 2014, the limit that has been prescribed for candidate expenditure under Section 77 (3) is up to rupees 70 lakhs for parliamentary constituencies, and up to rupees 28 lakhs for state assembly constituencies. If any candidate is found to have expended more than the said amounts, he is liable to be prosecuted for having committed a corrupt practice under Section 123(6) of the RP Act and may lead to disqualification for a further period of six years, both as a candidate and a voter, under Sections 8A and 11A of the RP Act.

          The Explanation 1 (a) to this Section however declares that:

“the expenditure incurred by leaders of a political party on account of travel by air or by any other means of transport for propagating programme of the political party shall not be deemed to be the expenditure in connection with the election incurred or authorised by a candidate of that political party or his election agent for the purposes of this sub-section…”

           The Explanation effectively serves to provide that expenses incurred by parties (not their candidates) will not be subject to any limits that the statute seeks to impose. It provides full immunity to political parties to expend as much as per their will. Since parties are not within the purview of Section 77, their election expenses sky-rocket. Below is the data for the expenses incurred by three most spending parties in 2014 General Election:[14]

Political Party Expenditure in 2014 Elections

(in Rupees crore)

Bharatiya Janata Party 714.28
Indian National Congress 516.02
Nationalist Congress Party 51.34

As per Section 29B of the RP Act, political parties are entitled to such any contributions “voluntarily offered to it by any person or company other than a government company.” However, Section 29C of the RP Act provides that such contributions which exceed the quantum of Rupees 20,0000 must be disclosed in the form of an annual report submitted to the Election Commission. This disclosure further operates as a condition precedent for the party to avail any tax relief under Section 29C (4) of RP Act read alongside Section 13A of the Income Tax Act. The Supreme Court, in Gajanan Krishnaji Bapat v Dattaji Raghobaji Meghe[15] strongly noted of this requirement as follows:

“We wish, however, to point out that though the practice followed by political parties in not maintaining accounts of receipts of the sale of coupons and donations as well as the expenditure incurred in connection with the election of its candidate appears to be a reality but it certainly is not a good practice. It leaves a lot of scope for soiling the purity of election by money influence.” [Emphasis is mine]

         While holding that the maintenance of “absolute purity in elections” was of utmost importance, the Supreme Court in Ashok Shankarrao Chavan v. Madhavrao Kinhalkar [16] recorded its observations in the following manner:

“…Even the explanation to Sub-section (1) to Section 123 makes it clear that incurring of election expenses and the maintenance of account of those expenses are not an empty formality but the very purpose of stipulating such restrictions and directions under Section 77(1) and (3) read along with Section 78 explains the mandate to maintain absolute purity in elections by the contesting candidates. This is required in order to ensure that the process of the election is not sullied by resorting to unethical means while incurring election expenses.” [Emphasis is mine]

         Until 1975, the courts[17] were reluctant to hold that third-party expenditure could be included within the candidate’s expends so as to test the same at the touchstone of ceiling limits. In  that year, the Supreme Court in Kanwar Lal Gupta v. Amar Nath Chawla,[18] held for the first time as follows:

“When a political party sponsoring a candidate incurs expenditure specifically in connection with his election, as distinguished from expenditure on general party propaganda, and the candidate knowingly takes advantage of it or participates in the programme or activity or consents to it or acquiesces in it, it would be reasonable to infer, save in special circumstances, that he impliedly authorised the political party to incur such expenditure; and he cannot escape the rigors of the ceiling by saying that he has not incurred expenditure but big political party has done so.”

        This was however undone by the court when it upheld the validity of a 1974 amendment which negated the verdict in Kanwar Lal Gupta (supra), in P. Nalla Thampy Terah v Union of India,[19] where the apex court unfortunately held as follows:

Election laws are not designed to produce economic equality amongst citizens. They can, at best, provide an equal opportunity to all sections of society to project their respective points of view on the occasion of elections. The method, somewhat unfortunate, by which law has achieved that purpose, is by freeing all others except the candidate and his election agent from the restriction on spending, so long as the expenditure is incurred or authorized by those others.” [Emphasis is mine]

        The order of the day was however restored by the apex court in its “seminal” exposition in Common Cause, a Registered Society v. Union of India,[20] where it reversed the onus of proof on the candidate who alleged to have claimed the benefit of the exception created by the Explanation appended to Section 77, holding:

“The expenditure (including that for which the candidate is seeking protection under Explanation I to Section 77 of R.P. Act) in connection with the election of a candidate – to the knowledge of the candidate or his election agent – shall be presumed to have been authorised by the candidate or his election agent. It shall, however, be open to the candidate to rebut the presumption in accordance with law…”

        Finally, the said explanation came to be deleted by the effect of Election and Other Related Laws (Amendment) Act 2003. The 255th Report of the Law Commission on Electoral Reforms records the current law on this subject matter as follows:

“Thus, the current position is that the expenditure incurred by (a) the leaders of political party on account of travel by air or by any other means of transport for propagating the party’s programme and (b) the political parties or their supporters for generally propagating the party’s programme shall not be deemed to be expenditure in connection with the election incurred or authorised by a candidate of that political party under Section 77, RPA.”

          Thus, the attempt of this part of the paper was to show the way in which political finance and its legal regulation works out in the Indian context. A lot of work needs to be done before state can lumber in glory by merely providing funds to political parties. How that funding would come about to be utilised will be a major question that must be answered before state funding is given a green signal.

State Funding of Elections: A Brief Account

         With this backdrop in mind, it is now appropriate for us to move on to understand and analyze the prospect of state funding of elections. Indirect state funding of elections is not entirely unknown even in the present context. The 2003 Amendment to the RP Act brought in place Section 39A which allows “partial in-kind subsidy in the form of allocation of equitable sharing of airtime on cable television networks and other electronic media” where the magnitude of such subsidy was pegged to the past performance of the respective political parties. Sections 78A and 78B were also introduced which allowed free supply of copies of electoral rolls with names of eligible and enrolled voters to the contestants.

        The first in (now) a long line of landmarks and milestones of deliberation around state-funding of elections was the report penned by the Dinesh Goswami Committee on Electoral Reforms in 1990, which made out a case in favor of “partial state funding of elections in the form of limited in-kind support for vehicle fuel (which is a primary campaign expense); rental charges for microphones; issuance of voter identity slips; and additional copies of electoral rolls.[21] The question as to from where would the state mobilize funds to fuel election got an answer from the Task Force constituted by the Confederation of Indian Industry (CII) in 1993. This force hinted at a possibility of imposition of either a tax or a special cess on the industry.[22]

         Then came about the Report dated 1998 from the Indrajit Gupta Committee on State Funding of Elections, which wholeheartedly endorsed and supported the idea of state funding of elections, seeing “full justification constitutional, legal as well as on ground of public interest” in order to establish a fair playing field for parties with less money power. It saw political parties as though being private bodies performing a “vital public function of sustaining sustaining democracy.” The Committee recommended phased partial state funding to be given to political parties. The only disagreement that the members of this committee had (which notably included who later was to become the Prime Minister, Dr. Manmohan Singh) was in relation to the existence or banning of funding by corporates or private individuals alongside a state fund. The Committee did not say anything per se on this issue and left it open to the wisdom of the Parliament to decide upon.

        Building upon this report was the Law Commission under Justice B.P. Jeevan Reddy, which in its 170th Report dated 1999, on on the Reform of Electoral Laws, ratified the policy recommendations of the Indrajit Gupta Committee Report on partial state funding in the immediate short-run back then, which was to be later converted into a total funding. Pertinently, the Commission was also alive to the dangers that loomed large among many parties which operated and functioned as dynastic fiefdoms, sans any sign of internal democratic fair processes. It noted that it was:

“…absolutely essential before the idea of state funding (whether partial or total) is resorted, the provisions suggested in this report relating to political parties (including the provisions ensuring internal democracy, internal structures) and maintenance of accounts, their auditing and submission to Election Commission are implemented…The state funding, without the aforesaid pre-conditions, would merely become another source of funds for the political parties and candidates at the cost of public exchequer.[23] [Emphasis is mine]

        In 2001, the National Commission to Review the Working of the Constitution concurred with the Law Commission’s observations and suggestions in its 170th report that the question of permitting state funding “should not even arise” without:

“an effective systemic acceptance of full audit of party funds including a full audit of campaign funds, deletion of explanation 1 to section 77(1) of the Representation of People Act 1951, a fool proof mechanism to deter expenditure violations, and until the government is convinced that these improvements have been institutionalised and are no longer being breached.”[24] [Emphasis is mine]

         On the same lines was the Second Administrative Reforms Commission’s 2007 Report on “Ethics in Governance” which while recommending partial state funding of elections to curb the scope of “illegitimate and unnecessary funding” of elections expenses hinted at the double-edged nature of such a move considering the inept state of Indian electoral system.[25]

         The Law Commission under Justice A.P. Shah, in its 255th Report dated 2015 on Electoral Reforms discusses the policy suggestion of state funding for election expenses. It recommends that since “it clear that complete public funding of elections or political parties in India is not a practical option; instead, indirect state subsidy is a better alternative for various reasons provided below.[26] The report speaks in terms of economic impact, and how it would be impossible for the Indian state to match the magnitude of grants in United Kingdom and Germany. It recommends continuance of the existing scheme of indirect transfers in the form of media coverage and supply of electoral rolls.

         Thus, the support that the prospect of state funding political parties has received seems to be of mixed proportions. A condition precedent that has been imposed before proceeding with such a policy in place, must also be first tested in the most strenuous manner possible. Political parties should become more public to get public funding.

Demography of Elections: The Electors and the Elected

        Elections are festivals of democracy where the citizenry unleashes its desires and commands one of those in electoral fray to rule them for the next five years. It entails inter-mingling and interaction of the electors and the elected at an unusual level which does not seem to happen throughout the five-years. In this context, elections represent an opportunity of making one’s government accountable, answerable and responsible. The Indian voter has time and again proved his mettle through his ballot. But this romanticist vision and notion of the Indian electoral process is just one side of the coin.

        Record bespeaks of great divergence between the Indian populace and the Indian state. Those who occupy constitutional posts, sit in legislatures and command the public purse, are not identical to their constituencies. Demographically, both come from distinct economic strata, and are thus not mirror-images of each other. The sixteenth Lok Sabha (constituted by way of General Election of 2014) has been labelled as the richest ever coterie of legislatures India has ever had. As per the data accessed and Election Watch report prepared by Association for Democratic Reforms (ADR), a whopping 82 percent of MPs in Lok Sabha possess assets or value more than rupees one crore.[27] Further, this trend of filling legislatures with rich people seem to be an upward moving trend as in 2009, this figure was just 58 percent, and in 2004, 30 percent.[28] This is at stark contrast with the general wealth levels of Indian society. The Indian state in 2013 accounted for the largest number of people who were spending their lives below the poverty line (BPL) with roughly 30 percent of Indians living below a two-dollar a day poverty measure.[29]

        The humungous reliance on money power in elections limits the mobility of the electorate into the electoral fray. This translates economic inequality into political inequality. This was cautioned against by the visionary constitutionalist Dr. Ambedkar in the Constituent Assembly when he said:

“On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up.”[30] [Emphasis is mine]

        The Supreme Court articulated this reality in the case of Kanwar Lal Gupta v. Amar Nath Chawla:[31]

“…money is bound to play an important part in the successful prosecution of an election campaign. Money supplies “assets for advertising and other forms of political solicitation that increases the candidate’s exposure to the public.” Not only can money buy advertising and canvassing facilities such as hoardings, posters, handbills, brochures etc. and all the other paraphernalia of an election campaign, but it can also provide the means for quick and speedy communications and movements and sophisticated campaign techniques and is also “a substitute for energy” in that paid workers can be employed where volunteers are found to be insufficient. The availability of large funds does ordinarily tend to increase the number of votes a candidate will receive. If, therefore, one political party or individual has larger resources available to it than another individual or political party, the former would certainly, under the present system of conducting elections, have an advantage over the latter in the electoral process”. [Emphasis is mine]

         Thus, the electoral processes come across as poignant reminders of the sad state of the poor, where all constitutionally opened doors for them, suddenly seem closed by the contemporary socio-political realities. In this regard, not only the means that the poor have (that is, to contest elections) are curtailed, but even the ends which an elected representative may seek to secure, are far away from their reach. It is this vicious cycle that ensures that the voice of the poor is somehow silenced by the weight of their class’s ballot.

What do elections tell us about poverty?

         Elections bring home two important rights. While the first one entails voting, the other relates to contesting in an election. These rights, in my opinion are two embodiments of an important human capability. Professor and Nobel Laureate Amartya Sen has, in his seminal work The Idea of Justice laid down a framework to address questions of deprivation and poverty. He contends that since wealth is a poor indicator of what human beings want and are able to be and to do, we must look beyond wealth and identify other factors which influence and impact their abilities. This has been developed by him as the capabilities approach.[32] While Sen does not enlist what he thinks could be these human capabilities, since political participation and affiliation in a democratic set up entails an important pivot in an individual’s life, I would like to read the same as a capability into his work.

         Martha Nussbaum, a philosopher who has had some association[33] with Sen on the same approach, has postulated in her Frontiers of Justice, what to her, seem to be the most important and most central human capabilities, sans which, life would not be worth living. There she has contended that an individual must be capable to affiliate and have control within one’s socio-political environment. Thus, an active political participation manifests the achievement of an important marker in the road to a just and well-lived life.[34]

       The Supreme Court has recognized the same in Kanwar Lal Gupta v. Amar Nath Chawla[35] as follows:

“…it should be open to individual or any political party, howsoever small, to be able to contest an election on a footing of equality with any other individual or political party, howsoever rich and well financed it may be, and no individual or political party should be able to secure an advantage over others by reason of its superior financial strength.” [Emphasis is mine]

      Regularly held free and fair elections in this sense are in stark contrast to undemocratic, authoritarian and dictatorial regimes, and provide pre facto avenues for what John Rawls and Sen have termed as “public reason.[36] Ballots, it has been contended have a very important role to play in the expressive phase of democratic functioning; but this role will be circumscribed in the larger species of nature and form of a democratic society. A polity will always operate in conjunction with the society; both are inseparable yet distinct parts of one whole. Therefore, economic inequality will not provide for political equality unless some steps against the same are not only taken but are also actively pursued.

        Elections therefore will (and I contend, that in contemporary India, are) mirror socio-political realities and the great divides between the ‘haves’ and the ‘have nots.’ The majority of Indian population just goes out to vote and mark the ballot. The “public reason,” an intersection of democracy and justice, seem to be a void in the Indian context, where peoples’ right to vote, and their right to contest elections, are marred by the ground realities of income gaps. Further, since elections are not just ends in themselves, but are supposed to serve as useful means towards some larger socio-political ends in the form of governance and administration, any disputation vis-à-vis electioneering carries with it the possibility of vitiating efficient and socially just and benevolent welfare politics from the state’s dome.

Evaluating the proposal of State Funding from the lens of the poor

            My arguments from now on, will operate on an in-principle-level of allowing state to fund political parties at an unprecedented level, which at the same time, in a system which would also make it imperative for parties to abstain from receiving any contributions from corporates or private individuals. State funding of elections comes across an attractive idea which suggests a road until now not taken in many democracies. It has the charm of ensuring zero reliance by political parties (which have come about to play a paramount role in the running of democracy) on ‘Big Money’ which may not always be either white or clean. At once, it is made to believe that state funding will make the menace of black money finding its ways into the electoral process end for once and for all.

            However, the problems are more serious and immediate. Elections, as have come to happen, run on a lot of money. The first and foremost problem that we would encounter in state-funding would be that of matching to these gargantuan proportions. Even if we assume for a while, that state funding would leave parties better-off per se, there is hardly any conclusive and cogent basis to believe that corporate funding would come to an absolute standstill.

           Election law operates in ways that are strange and mystic. In this province, any true “reform” requires a great wave of political will and political capital. Laws and rules relating to election practices are perhaps the best examples of a pre facto nemo judex in causa sua, where the fact that laws that will ultimately affect the law makers, does end up affecting the way in which laws are framed, is most strikingly visible. Therefore, we must accept that the idea of altogether banning private donations will fail to find any political currency. This sentiment also resonates with the lack of consensus in the Indrajit Gupta Committee (1998) and the observations of the apex court in the case of Ashok Shankarrao Chavan v. Madhavrao Kinhalkar:[37]

“In recent times, when elections are being held it is widely reported in the press and media that money power plays a very vital role. Going by such reports and if it is true then it is highly unfortunate that many of the voters are prepared to sell their votes for a few hundred rupees…This view of ours is more so apt in the present day context, wherein money power virtually controls the whole field of election and that people are taken for a ride by such unscrupulous elements who want to gain the status of a Member of Parliament or the State Legislature by hook or crook.” [Emphasis is mine]

           On the other hand, we even run the risk of making elections even more expensive when seek to open the floodgates of tax-payers’ hard-earned money! This psychological prediction is not hard to conceive when one pays a little attention to the electoral history of India where pure legalism has always gone for a toss in light of short-term considerations of winning elections. This is also in line with the Supreme Court’s words in Ashok Shankarrao Chavan v. Madhavrao Kinhalkar:[38]

“…it is a hard reality that if one is prepared to expend money to unimaginable limits only then can he be preferred to be nominated as a candidate for such membership, as against the credentials of genuine and deserving candidates.” [Emphasis is mine]

            This would further undermine the capability of the poor people to stand in elections and fight for representative offices. At the present, exclusion of majority of Indians from contesting elections is happening at the cost and expense of corporates and rich capital owning individuals who fuel political finance. If we allow for state funding now, there is a looming danger that then the same sort of exclusion would be happening at the cost of public exchequer. This is not to contend that corporate funding is devoid of any increments by virtue of exploitation of the poor; so in that sense, even the current set up is happening at the cost of exploitative transfers from the poor to the rich. But, the point remains that state funding would make this exploitation more apparent, and proximately connected, which might end up making the poor Indian voter more apathetic and disillusioned than he is today. What is contended is that it is relatively better if bad money goes and fuels bad activities, than good and clean money of the public being put to such nefarious purposes. A solution cannot be detached from the reality, which is plagued by corruption and lack of respect for public trust. The lack of political will to reform elections was exposited by the apex court in People’s Union for Civil Liberties v Union of India:[39]

“One of the most critical problems in the matter of electoral reforms is the hard reality that for contesting an election one needs large amounts of money. The limits of expenditure prescribed are meaningless and almost never adhered to. As a result, it becomes difficult for the good and the honest to enter legislatures. It also creates a high degree of compulsion for corruption in the political arena. This has progressively polluted the entire system. Corruption, because it erodes performance, becomes one of the leading reasons for non-performance and compromised governance in the country. The sources of some of the election funds are believed to be unaccounted criminal money in return for protection, unaccounted funds from business groups who expect a high return on this investment, kickbacks or commissions on contracts etc.” [Emphasis is mine]

            When the state would be asked to fund political parties, and not ensure that conditions for free and fair elections are there in place; it will be under a duty to commit a positive act of funding. This would be in distinction from the negative omission to not to interfere with the election commission’s conduct of elections. Henry Shue, in his Basic Rights[40] casts serious reservations on any such watertight distinction. In that regard, state funding of elections will necessarily have to be tested on the touchtone of its ability to democratize and non-marketize elections. That possibility, as has been shown above, seems not only bleak, but also remote in the system as it operates today.

            Sixty-seven years of India’s Republicanism have pointed out how election reforms time and again have gone in vain where only money, force, and caste rule the day. There is absolutely nothing that we can further afford to lose at this juncture. What I contend is rather this: political parties must earn trust, faith, and confidence of tax-payers’ so as to gain any entitlement from the national treasure. Thus, what is required is a change in the practice and not just a change in laws. This change in practices will be the only condition precedent to even contemplate state funding of elections. Any other form of state-finding will only act counter to the voters’ interests and would work to disillusion them.

Conclusion

            The recent trends in the form of Finance Act, 2017 suggest a route contrary to public funding. While previously there used to be a cap of “seven and a half per cent of a company’s average net profits during the three immediately preceding financial years,” now the same has been done away with by the said statute. This will further pump up the funding that political parties expect to get by way of donations from corporates and private individuals.

            As has been pointed out, state funding of elections, in the current legal set up, or even if the legal set up is reformed, but without any on ground practical change, will only run counter to the interests of the poor. Public exchequer funding parties will only go on to disillusion and traumatize the poor voters who will only see these parties dancing in state’s rain.


[1] Rajdeep Sardesai, 2014: The Election that Changed India (2015).

[2] Law Commission of India, 255th Report on Electoral Reforms, March 2015, Available at: http://www.lawcommissionofindia.nic.in/reports/Report255.pdf.

[3] Joo-Cheong Tham, Money and Politics: The Democracy We Can’t Afford (2010).

[4] Organization for Economic Cooperation and Development (OECD), Money in Politics: Sound Political Competition and Trust in Government: A Background Paper, November 2013, Available at: http://www.oecd.org/gov/ethics/Money-in-politics.pdf; Yasmin Dawood, Democracy, Power, and the Supreme Court: Campaign Finance Reform in Comparative Context, 4 International Journal of Constitutional Law, (2006) pp. 269-293.

[5] P.C. Jain et.al., DD Chawla’s Election Law and Practice, (8th ed. 2004).

[6] Dr. S.Y. Quraishi, An Undocumented Wonder: The Making of the Great Indian Election (2014).

[7] P.D.T. Achary, Law of Elections, (1st ed., 2004).

[8] Mcconnell, United States Senator v. Federal Election Commission, 540 U.S. 93(2003).

[9] R.N. Choudhry, Election Laws and Practice In India, (2nd ed., 2005).

[10] Act No. 12 of 2017.

[11] Act No. 43 of 1951.

[12] Act No. 18 of 2013.

[13] Act No. 43 of 1961.

[14] Election Commission of India, Background Paper on Political Finance, 2015, Available at http://eci.nic.in/eci_main1/Current/BackgroundPaper23032015.pdf.

[15] Gajanan Krishnaji Bapat v. Dattaji Raghobaji Meghe, (1995) 5 SCC 347.

[16] Ashok Shankarrao Chavan v. Madhavrao Kinhalkar, (2014) 7 SCC 99

[17] Karimji Rehmanji Chipa v. Abdurahim Tajuji, 36 ELR 283; Rananjaya Singh v. Baijnath Singh, (1955) 1 SCR 671; Magraj Patodia v. R. K. Birla (1970) 2 SCC 888.

[18] Kanwar Lal Gupta v. Amar Nath Chawla, (1975) 3 SCC 646

[19] P. Nalla Thampy Terah v Union of India, (1985) Supp. SCC 189.

[20] Common Cause, a Registered Society v. Union of India, (1996) 2 SCC 752.

[21] Government of India, Report of the Committee on Electoral Reforms, May 1990, Available at http://www.lawmin.nic.in/ld/erreports/Dinesh%20Goswami%20Report%20on%20Electoral%20Ref

orms.pdf.

[22] Samya Chatterjee, Campaign Finance Reforms in India: Issues and Challenges, Observer Research Foundation Issue Brief 47, December 2012, Available at: http://www.orfonline.org/cms/export/orfonline/modules/issuebrief/attachments/Issue_47_1360754 379618.pdf.

[23] Law Commission of India, 170th Report on the Reform of Electoral Laws, Available at http://www.lawcommissionofindia.nic.in/lc170.htm.

[24] See Chapter 4, Electoral Processes and Political Parties, para 4.14 on “High Cost of Elections and Abuse of Money Power” in Ministry of Law and Justice, Report of the National Commission to Review the Working of the Constitution, Available at http://www.lawmin.nic.in/ncrwc/finalreport/v1ch4.htm.

Options, January 2001, Available at http://www.lawmin.nic.in/ncrwc/finalreport/v2b1-9.htm.

[25] Fourth Report of the Second Administrative Reforms Commission, Ethics in Governance, (2007) Available at http://arc.gov.in/4threport.pdf at para 2.1.3.1.6.

[26] Law Commission of India, 255th Report on Electoral Reforms, March 2015, Available at: http://www.lawcommissionofindia.nic.in/reports/Report255.pdf.

[27] Association for Democratic Reforms, Analysis of Criminal and Financial background details of Lok Sabha 2014 Winners, 18 May, 2014, Available at http://www.adrindia.org/research-and-report/election-watch/lok-sabha/2014/lok-sabha-2014-winners-analysis-criminal-and-finan.

[28] Rukmini S., 16th Lok Sabha will be richest, have most MPs with criminal charges, The Hindu, 18 May, 2014, Available at http://www.thehindu.com/news/national/16th-lok-sabha-will-be-richest-have-most-mps-with-criminal-charges/article6022513.ece.

[29] India has highest number of people living below poverty line: World Bank, Business Today, October 3, 2016, Available at http://www.businesstoday.in/current/economy-politics/india-has-highest-number-of-people-living-below-poverty-line-world-bank/story/238085.html

[30] Constituent Assembly Debates, Volume XI on 25th November, 1949.

[31] Kanwar Lal Gupta v. Amar Nath Chawla, (1975) 3 SCC 646.

[32] Amartya Sen, The Idea of Justice (2009) p.231.

[33] See Martha Nussbaum & Sen (eds.), The Quality of Life (1993).

[34] Martha Nussbaum, Frontiers of Justice (2006) pp. 69-81.

[35] Kanwar Lal Gupta v. Amar Nath Chawla, (1975) 3 SCC 646.

[36] Jürgen Habermas, Reconciliation through the Public Use of Reason: Remarks on John Rawls’s Political Liberalism, Journal of Philosophy, 92 (1995) pp. 127-128.

[37] Ashok Shankarrao Chavan v. Madhavrao Kinhalkar, (2014) 7 SCC 99.

[38] Ashok Shankarrao Chavan v. Madhavrao Kinhalkar, (2014) 7 SCC 99.

[39] People’s Union for Civil Liberties v. Union of India, (2003) 4 SCC 399

[40] Henry Shue, Basic Rights: Subsistence Affluence and US Foreign Policy (1980) pp. 13-34.

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Alcoholic Patriotism : Economic Analysis of two judgments of the Supreme Court

About

This post seeks to analyse the two judgments passed by the Supreme Court through the lens of law and economics. These two judgments are:

  • Shyam Narayan Chouksey v. Union of India (National Anthem in Cinemas Case)
  • K. Balu v. Union of India (Liquor Vends on Highways Case)

Critical Introduction

The progress of the Law and Economics movement can best be attributed to the global advance in business, commerce, and trade-related transactions. Oliver Wendell Holmes’ prediction in his The Path of Law did not come to be interpreted as a mere truism, but s a guiding inspiration to imbibe in the reading and analysis of laws, a sense of inter-disciplinarily with economics. He remarked:

For the rational study of the law, the black letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics.[1]

The extensive use of economic analysis in the study of the legal system helps in developing a unique understanding of the same; providing perspectives which are unknown and sometimes unthinkable for a lawyer who is usually uninterested much in economics.

In the recent times, a few judgments of the Supreme Court of India have been able to extensively capture the attention of mainstream news reporting, and editorial writing. Not that this does not happen very often. But, what is unique about these judgments (which are the focus of this paper) is the prima facie constitutional significance that they command; and the corresponding anxiety and tumult that that seem to have created in the public sphere.

Unlike legislative activity, which has an inherently engrained theoretical popular element, judicial activity in the form of litigation and consequent adjudication of disputes in courts of law, does not (on all occasions) makes national front-page headlines. The reason that lawyers attribute to this is that judicial function is not that of law-making, but that of law-interpreting on a case-to-case basis. Economists might argue that judges do not engage in macro-economic policy making; and engage with individuals and organizations at a micro-level. But, this is now true only in theory; with judges acting through instruments such as Public Interest Litigation (PILs), which some have called has Social Action Litigation,[2] courts have increasingly been able to command a significant amount of power at a the macro-level.

Murphy and Coleman have credited the law and economics movement as:

having sought to explore the extent to which virtually all areas of the law could be understood as the institutional embodiment of the principle of economic efficiency.[3]

They also go ahead to say that the subject matter in falling within the commonality of this interdisciplinary approach has both analytic and normative dimensions. The first one in the sense that questions of law and justice are quintessentially questions of economics such as allocation of resources, and of efficiency; while the latter as providing economically sound terms of reference for law-people to legislate, execute and adjudicate so as to further economic efficiency. I am of the opinion that the subject-matter also has a descriptive dimension in the sense that laws and precedents can describe how economic considerations have played a major role in the development of what has come to be called the “law.”

In this sense, courts of law have been modelled by Richard A. Posner as mimicking the market, and practicing something termed as the “jurisprudence of prudence”.[4] Nonetheless, the law and economics movement is not sans its criticisms. Since a market system predominantly works in the favor the of the rich, the law, in that sense cannot be partisan, and resound and reverberate the tilted balance of power prevailing in capitalist markets.

The National Anthem Case

Shyam Narayan Chouksey v. Union of India[6] was a petition moving the Supreme Court in the form of a public interest litigation, asking for placing “emphasis…on showing requisite and necessary respect when the National Anthem is sung or played”, and asserting “that it is the duty of every person to show respect when the National Anthem is played or recited or sung.” The petitioner was seeking the issuance of directions from the Court to effectuate the assertion, and provide for the fulfilment of the purported objects behind the enactment of Prevention of Insults to National Honour Act, 1971. On the 30th of November, 2016, the bench comprising of Justices Mr. Dipak Misra and Mr. Amita Roy issued interim directions, out of which, the following will be used for the purposes of this paper:

(d) All the cinema halls in India shall play the National Anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the National Anthem.

The bench went ahead and sought to explain theoretical underpinning for this direction in the concept of “constitutional patriotism” postulated by Jürgen Habermas, a German sociologist.[7] The judgment made national headlines. In a day or two, the newspapers were flooded by editorial writings by lawyers, law professors, civil society activists and sociologists; expressing solemn disapprobation of the aforesaid direction. However, some scholars like Professor Faizan Mustafa, went as far as to question the very theoretical grounding of the judgment by the judges, when he said:

Justice Misra used the term “constitutional patriotism”. Jurgen Habermas uses this term (verfassungspatriotismus) to argue for “individual autonomy” and “super-national identity”. For Habermas, the term is different from “aggressive nationalism,” based on majoritarinism; it is a compromise between nationalism and cosmopolitism.”[8]

The economic analysis is visible in the form of curtailment of individual freedom and liberty that is manifest in the compulsory nature of the direction. The dilution of freedom is an important corollary of going away from Adam Smith’s theory of Invisible Hand. Can we say that nations are held together by cohesive forces generated by something like the invisible hand, where the citizenry unconsciously (which need not be told to “show respect” to symbols) through its active participation at an individual level constitutes the nation? Aggressive tendencies to cause certain economic outcomes may, in fact be comparable to what, Harsh Mander, in an article in the Hindustan Times has said:

This ruling of India’s highest court, carrying the weight of law, troublingly mirrors the aggressive hyper-nationalism that is sweeping the country today. In this discourse, the nation, its leader, the government and the country’s religious majority all converge. Opposition to majoritarian politics and vigilantism, as much as dissent with central government policy and criticism of the Prime Minister, are all painted alike as impermissible disloyalty to the nation.[9]

Pratap Bhanu Mehta went on to the extent of saying that the judgment bespeaks of a court that has undone itself over the past few years with judgments such as these; and entails “biggest crisis of legitimacy” that the court is now facing since the times of National Emergency of 1975-1977.[10] His criticism comes from the libertarian perspective of the Rule of Law. The tall pillar of Indian legal academia, Professor Upendra Baxi came to the rescue of the Supreme Court who in his piece Unfair to Justices pointed at the slippery slope of Mehta’s argument that criticizing the entire court for decision by a bench of two was unfair and unwarranted overblowing.[11] The counter-intuitive nature of the direction is perhaps best captured by the term popcorn nationalism used by Bhairav Acharya, writing for The Wire.[12]

Also pertinent would be to reproduce what Shivam Vij of the Huffington Post has to remark on what he feels is judicial over-reach by the apex court judges:

With due respect to the honourable apex court, sometimes you wonder why they spend time on things best left to the government. Or, on really inconsequential things.[13]

This form of exercise of judicial power is comparable to the analysis by Richard A. Posner when he gives an economic understanding in terms of how a balance must be created in terms of high transaction costs and enhancement of efficiency when governmental powers are separated amongst the legislature, executive and the judiciary in Montesquieu’s terms. While separation of powers allows the government to exploit the economies of specialization, the breach of separations is not seen as substantive breaches of skill and ability, but of procedural limitations that go against the rules.

Alok Prasanna Kumar, in his article on First Post, brings home the point similar to what economists prefer in the making and interpretation of the laws: stability, coherence and consistency. He contends as follows:

In the next direction, demanding that entry and exit doors be closed while playing the National Anthem, the Supreme Court ignores its own earlier judgment in the Uphaar tragedy case[[14]] where the court, for good reasons, had held that under no circumstances should doors to a cinema be shut from the outside. Perhaps it should be considered that unlike laws written by institutions, the laws of physics can’t be suspended or struck down by a judicial order, and if a fire breaks out, all the patriotism in the world won’t save you from a horrible death in a closed room.[15]

In pure economic terms, let us now discuss as to what were the choices before the court. It had the absolute liberty to sit silent over the petition or dispose it of. It however, chose to pass a decision. This decision was to take effect in commercial establishments (cinema theatres and multiplexes) which run for profit maximization. The question now is, whether there were any costs involved in the implementation of such an order. From the perspective of the cinema theatres, the cost was negligible. They had to anyway screen the movies; and now had to precede the screening with the playing of the national anthem. From the side of the consumers of films in cinemas, for the viewers, the only cost was that of the physical cost of standing. The differently abled persons were exempted from this otherwise blanket requirement of standing erect in reverence of national anthem. Through this cost-based analysis, we may conclude that there was no economic impediment or restraint that was acting on the judges to not to pass the direction that they did pass.[16] It was thus, in the absence of such an economic restraint, that the criticism which the direction received, was more or less, only ideological in nature. This economic understanding is important to move on to discuss the next judgment, which is under consideration in this paper.

The Liquor Vends on Highways’ Case

From what some have remarked to be a “frivolous” petition moved by a person who had too much “time on his hands,”[17] we come to what seems to be actually a serious business Public Interest Litigation petition, now at the stage of a Special Leave before the Supreme Court. This SLP was being heard against the decisions rendered by the Madras High Court and Punjab & Haryana High Court while they were hearing two different PILs on a similar question. K. Balu was the petitioner at Chennai, while Arrive Safe Society had moved the Court at Chandigarh. The matter was being heard by Chief Justice Mr. T.S. Thakur, and Justices Mr. D.Y. Chandrachud, and Mr. L. Nageswara Rao. The call was whether to ban liquor vending outlets in and around National and State Highways. These roads carry the most burden of vehicular traffic as they serve long-distance travel in a seamless manner. It was brought out through ample statistics that drunken driving was one of the predominant curable causes behind accidents and deaths on roads.

The backdrop was the case was such that the court had to conduct a balancing act between the cost of human lives, and the commercial benefits arising out of revenue generation through liquor vends. It must also be borne in sight that for many a people, their livelihood is contingent on the functioning of these vends. In this regard, the court’s exercise of jurisdiction seems to resemble and resound the paternalistic notions of state responsibility.

Separation of powers between the legislature and judiciary is not a trite, it is a recurring theme in Indian constitutionalism due to the looseness of the concept in Indian terrain of law. It does increase the transaction costs since the number of agents (who have a say in the decision-making process) increases with the compartmentalisation of government, but the efficiency in governance is achieved due to the division in functional domains. If the court, as Advocate Gautam Bhatia has noted, loses sight of this important principle in a legal setup such as ours, the efficacy and true purpose for the establishment of courts of law, goes for a toss.[18] In economic analysis of law, efficacy of legal action does matter to a great extent.

It is also arguable that the principle of federalism, which implies separation of Centre’s powers from the states instils greater efficiency into the governmental process. Detailed inquiry has been attempted in this sphere in relation to the Constitution of the United States. In India, this division of is manifested in Schedule VII to the Constitution of India. However, as is not often observed in the context of the US, which is a totally federal polity, in India, the quasi-federal nature, and the unitary tendencies in India at times cause deadlock in the cooperation between the central government and the constituting states. This gives a whole new shape to the economic question in the Liquor Vends Case. It is stated on record that on the elapse of thirteen long years since the Union government first mooted the idea of banning liquor vends on national highways, nothing moved on ground due to state governments’ inaction. The subject-matter governing policy relating to excise on liquor falls within the ambit of the states. In this 2016 judgment, the Supreme Court paved the way for this plea to be given effect to, by observing the impediments imposed by federal nature of the question; and went ahead to do the job itself. States were unwilling to give effect to the Union government’s policy since they had an economic incentive in permitting liquor vends on highways; since they were the direct beneficiaries of consequent revenue collection out of the process. At a distinct yet relatable level, perhaps this points to a further understanding of judicial and legislative functions. Guidance to law-making is often sourced to public opinion prevailing at particular points of time. A.V. Dicey has pointed out how “judicial legislation” (judge-made law) which seems to have been the phenomenon in courts banning liquor vends is always guided by principles of coherence and consistency, as against legislative rule-making which is more often than not guided by lobbyists.[19] Perhaps, this might explain why the state governments were sitting silent on the Union government’s advisory to do what the apex court finally did in 2016!

A point to be noted from the commercial point of view is that there is no absolute bar on the presence of liquor vends on all kinds of roads. First limitation comes in when only state and national highways are selected of all. Second restraint is in the form of allowing liquor vends beyond a distance of 500 meters from the road. While the judgment makes it clear that the prohibition will apply even to sections of highways passing across towns, cities and within municipal limits, the ball is now in the court of state governments as to whether they will decide to de-notify certain sections of such highways so as to indirectly allow vending of liquor in certain parts of such roads.

Comparative Economic Analysis of the Judgments

The two judgments have both, similarities and differences. Both of them apply to commercial establishments operating for profit maximization: cinemas and liquor vends. However, in the Liquor Vends Case, there is a clear directive policy from the union executive, which the apex court ostensibly gives effect to; in the National Anthem Case, there is little basis in the law to allow for the direction that the court has issued.

Another interesting aspect that an economic analysis of the two judgments can look into is the weightage accorded to fulfilling and giving effect to the Directive Principles of State Policy (DPSPs) and enforcing Fundamental Duties. Both of these are non-justiciable and legally non-enforceable by courts of law. However, the recent trend followed by courts suggests slightly the otherwise. In the National Anthem Case, the Court relied on the following:

51A. Fundamental duties – It shall be the duty of every citizen of India – (a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem”.[20]

 It must be noted that there is no basis in law to pass such an order. Apparently, the court seems to read a few statutes together with a constitutional provision to come up with something absolutely new and alien to Indian law.

In the Liquor Vends Case, the following DPSP is quoted by the Court:

47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health: The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavor to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.[21]

The way the court goes on to place reliance on these two constitutional provisions is reflective and instructive to lawyers interested in economic analysis of the law. While the judges had to react to the jurisdiction invoking what they felt was a public interest matter, they did so in the ambit and scope defined by economic considerations. They did not absolutely placed prohibition on liquor vends on roads since they understood the potential economic repercussions of the measure. At the same time, they placed an absolute positive requirement on cinema theatres to play national anthem, and on viewers to stand while it played taking into account the low costs entailed in the execution of such measure. Therefore, the court showed a zero tolerance towards what was supposed to follow in cinema halls, while it was determined to reach a compromise on tolerating liquor vending on roads. Thus, the normative conclusion that is reached is that since all apparently purely legal doctrines also have underlying economic costs,[22] the court must estimate the same before delivering its verdict.

Analytical Conclusion : A Theory of Anticipatory Costs

Thus what seems to be the case through the two judgments which were the focus of this paper is that judges are guided not only by ideologies (which unlike economic principles) prima facie speak through their judgments, but also by principles of economics to minimize costs and maximize utility. In this, regard, they anticipate the costs inherent in any probable verdict that they would hand out.  The two judgments are perfect examples where the Supreme Court’s judgment varied with the length of its feet,[23] and its influence on the law of the land was in a sense, allowed (in the National Anthem Case) and limited (in the Liquor Vends Case) by market forces of demand and supply, which form the core of economic analysis.

Constitutional Economics in this sense perhaps also captured by Charles Evans Hughes’s famous statement when he said that a “constitution is what judges say it is,” where judges like all human beings are not absolutely immune from economic considerations, and what they will say, might at times be in consonance with what economists would also say.


[1] Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harvard Law Review 457 (1897).  His ostensible object was “the prediction of the incidence of the public force through the instrumentality of the courts.

[2] Baxi, Upendra, Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India, 4 Third World Legal Studies,108, 107-132 (1985).

[3] Jeffrie G. Murphy and Jules L. Coleman, Philosophy of Law, 181 (Oxford University Press, 1997).

[4] This is a major theme of the book Richard Posner, How Judges Think, (Harvard University Press, 2008).

[5] Richard A. Posner, Free Speech in an Economic Perspective, 20 Suffolk University Law Review 1 (1986).

[6] Writ Petition (Civil) Nos. 855 of 2016 in the Supreme Court of India; Reported as (2017) 1 SCC 423.

[7] Müller, Jan-Werner, A General Theory of Constitutional Patriotism, 6 (1) International Journal of Constitutional Law. 72–95. (2007).

[8] Faizan Mustafa, Making playing of national anthem mandatory goes against its spirit, The Indian Express, December 7, 2016. Available at http://www.indianexpress.com/article/opinion/columns/national-anthem-in-theatre-supreme-court-national-flag-4414157/.

[9] Harsh Mander, SC order on national anthem in cinema halls mirrors aggressive hyper-nationalism, Hindustan Times, December 1, 2016. Available at http://www.hindustantimes.com/opinion/sc-order-on-national-anthem-in-cinema-halls-mirrors-aggressive-hyper-nationalism/story-vL1QM3xibtppLQW7c08tGI.html.

[10] Pratap Bhanu Mehta, Unconstitutional patriotism: Order on national anthem shows what is wrong with the Court, The Indian Express, December 3, 2016. Available at http://indianexpress.com/article/opinion/columns/national-anthem-cinema-halls-supreme-court-order-unconstitutional-patriotism-4407560/.

[11] Upendra Baxi, Unfair to Justices, The Indian Express, December 12, 2016. Available at http://indianexpress.com/article/opinion/columns/supreme-court-national-anthem-cinema-halls-unfair-to-justices-4422239/.

[12] Bhairav Acharya, The National Anthem and the Supreme Court’s Popcorn Nationalism, The Wire, December 3, 2016. Available at https://thewire.in/83910/the-national-anthem-and-the-supreme-courts-popcorn-nationalism/.

[13] Shivam Vij, Just Why should the National Anthem be Played in Cinema Halls?, The Huffington Post, December 30, 2016. Available at http://www.huffingtonpost.in/2016/11/30/just-why-should-the-national-anthem-be-played-in-cinema-halls/.

[14] MCD v. Uphaar Tragedy Victims Association, (2011) 14 SCC 481.

[15] Alok Prasanna Kumar, Supreme Court’s National Anthem order mocks judicial process, Constitution, First Post, December 1, 2016. Available at http://www.firstpost.com/india/supreme-courts-national-anthem-order-mocks-judicial-process-constitution-3134204.html.

[16] Richard A. Posner, The Constitution as an Economic Document, 56 George Washington Law Review 4, (1987).

[17] Bhairav Acharya, The National Anthem and the Supreme Court’s Popcorn Nationalism, The Wire, December 3, 2016. Available at https://thewire.in/83910/the-national-anthem-and-the-supreme-courts-popcorn-nationalism/.

[18] Gautam Bhatia, The Supreme Court’s Judgment on the Sale of Liquor along National Highways, Indian Constitutional Law and Philosophy, December 17, 2016. Available at https://indconlawphil.wordpress.com/2016/12/17/the-supreme-courts-judgment-on-the-sale-of-liquor-along-national-highways/.

[19] This possibility is hinted in Why are States speaking the language of liquor vendors, asks SC, The Hindu, December 3, 2016. Available at http://www.thehindu.com/news/national/Why-are-States-speaking-the-language-of-liquor-vendors-asks-SC/article16774246.ece. For understanding the concept See A.V. Dicey, Law & Public Opinion in England, (Macmillan, 1905).

[20] Article 51A, Constitution of India.

[21] Article 47, Constitution of India.

[22] Maxwell L. Stearns, The Economics of Constitutional Law, in The Oxford Handbook of the U.S. Constitution (Mark Tushnet, Mark A. Graber, and Sanford Levinson ed., 2015).

[23] Reference is made to the comment made by John Selden, an eminent seventeenth century jurist to point to the inconsistency of decisions of the Equity/Chancery courts functioning in England: “Equity varies with the length of the Chancellor’s foot”.

Henry Cecil’s Short Stories: Some Literary Reflections on Legal System and Judicial Process

INTRODUCTION

Law in literature comes across as a recurring theme in fictional and imaginative texts. While the cause behind such recurrence has been subject to much debate and discussion; what is certain is the close interplay of the two disciplines, which has now been accepted even by an initial opponent of the discipline, Judge Richard Posner.

Of the tripartite approach framework constituting the interdisciplinary intermingling of law and literature, “law in literature” is perhaps the most intuitive understanding among the law people. Reading is not an unknown province for us law people. But reading what? For many law people (including me), reading fiction is not a cup of tea. We are (either by chance, or by choice), more occupied into reading what I (and co-incidentally, Felix Frankfurter has called) would call the real stuff. Constitutions, statutes, law reports, law reviews, law journals, news, editorials et al form the rigid expanse of our libraries, and minds.[1] However, reading fictional and imaginative accounts does have a charm of its own. Of all fictional typologies on board, I can say that short stories carry the highest potential to intersect and make inroads into our “billable hours,” giving a breath of different air from the outside.[2] Since the idea of reading a story a day is not prima facie challenging to rob a lawyer of his productive hour (by which, it is to be noted, he is paid), one should read short stories, and perhaps a collection of them over a definite time-span.

Henry Cecil, who is otherwise well known for writing mind-grasping novels such as Brothers in Law (1955), No Bail for the Judge (1952), Sober as a Judge (1958), and Fathers in Law (1965) inter alia, has also written some non-fictional literature, notably The English Judge (1970), and his autobiographical account, Just Within the Law (1975). How much his thinking was “within the law” is a question that this review of his collection of short stories, that goes with the title of the first story, ‘Portrait of a Judge,’ will seek to discuss. Henry Cecil Leon was called to the bar in 1923, and was appointed as a County Court Judge in the year 1949 and remained so till 1967. Of his works it has been said that:

“His books are works of great comic genius with unpredictable twists of plot which highlight the often absurd workings of the English legal system.”[3]

Representation of legal principles, institutions, systems, manners, ways, customs, ideas, events, and mores in fictional works carries with it both, an autonomous experimentalism and a cautious responsibility. Perhaps you’d be wondering that sans beginning to talk about the book at hand, I have already introduced two new phraseologies in an already over-verbose landscape that characterizes the law and literature movement. I would differ. Taking cues from the history of law and literature movement, one realization that is apparent the most is that authors of literature who take the onerous burden of writing about the law, can extend and tweak the mainstream understanding of the law, but must not misrepresent it or carve a straw man to throw stones at.

For a writer of fictional literature, there is no dearth of potential stories and plots to pick and choose from the process of laws and justice administration; and what to say of a law person. Having dealt in the law for more than forty years, first as a barrister, and then as a county court judge, Henry Cecil brings with most of his short stories, a peculiar twist, which is hidden until the very end of his stories, which when revealed, resounds and reverberates one’s (un)awareness with the legal system and the judicial process.

A “COLLECTION” OF SHORT STORIES: LIKE BEADS IN A GARLAND

With twenty-two short stories, Henry Cecil’s 1964 collection, when read in toto is reminiscent of how individual beads can be needled into a comprehensive garland, which in turn, more or less, may subsume within it, the fundamental qualities of a legal system. In its classical sense and theoretical paradigm, a legal system is a means to an end; where the end to be achieved is that of justice. While some have questioned the need and purpose of laws, it is widely held that legal processes ensure stability and regulation in the society. For this to be a realistic aim and goal of the system, there must be a whole range is structures and procedures in place which cultivate an understanding of the rule of law. Legal resolution of disputed questions is a fascinating process, which is very well capable of cogent literary exposition.

The road to the judicial determination of cases begins with a cause of action. This is the foundational stone of any litigation. It is an act or an omission by someone which entitles the other party to move a court of law. Near Miss[4] is mainly about two aspects. First is the “dirty game” of politics through which laws, regulations, policies are enacted. A legislator, Giles Kenwood, MP, who is a “man of integrity” ideates that if each and every one of the public begins to take due precaution and safety, on roads, the number of accident deaths occurring would drastically plummet. Through his campaign, he was able to persuade the government to go for a “No Accident Day.” Such successful experimentation could make a strong case for Mr. Kenwood to be appointed as the Minister for Transport in the near future. However, on the very day our protagonist had a near miss, and almost crushed a cyclist. But, nothing happened then. However, the majority of the story revolved around his fear and anxiety of getting apprehended. He thinks that the victim must have noted the license plate of his car; and if not fully, then it must take some days for the police to shortlist unto him through the hit and trial method. At last, the police did come to his house, only to seek an alibi for the cyclist who was arrested in a case involving murder! Cecil must have experienced the ways common folk fear to tread the law, and their fears of the state and the police; which he represented in his portrayal of the fears of the legislator. He brought this home through this story in a manner beyond criticism where a legislator has to have sleeping pills, only to realize how fate connected him to the cyclist, a poor man caught for someone else’s murder!

Let’s suppose that Mr. Kenwood had been apprehended for a murder in Near Miss. In such a scenario, he gets all his ‘due process’ protections such as audi alterum partem; as per which no prisoner should be condemned unheard. Once you have a case onto yourself (or even if a citizen wants to plaint or writ against someone), you are required to engage and instruct a lawyer (solicitor, in English law). No Expectations[5] is a story around the classic concept and the consequent notions underlying a typical client-attorney relationship. This is a very “special relationship,”[6] guided by principles such as confidentiality and non-admissibility of evidence. You can be absolutely frank with your lawyer; but mind that after all he is engaging in your instruction only to make his “pockets deep” or to extract yours![7] In fact, a quite a learned Lord Brougham once observed that lawyers are “learned gentlemen who rescue your estate from your enemies, and keep it to themselves.” In this story, a nurse, Sister Angle approaches the best known firm of solicitors in the town, Messrs Mendip & Merton to get her patient Mrs. Gloster depose a testament, that is, to make a will. She hands over to the solicitor a sealed envelope containing the old lady’s instructions. However, the solicitor is not convinced by the sister’s overtures, which raise his eyebrows as to the authenticity of the instructions. Was the sister eyeing notoriously at the estate? No, in the middle of the story, it seems that all the solicitor’s worries seem baseless and rejected. There is on the face of it, the proof of a smooth succession to the old lady’s estate. However, at the turn of the narrative, the solicitor is proved right, when the police discover that the sister had a long record of murdering such old people when they were at the verge of their death! The story also entails a discussion of the modus operandi of the sister, and the way she outsmarted people by not falling trap to the classic popular notion where criminals get caught by virtue of their greed, and failure to satiate. With a dose of lesson on criminology, Cecil closes the story by playing a pun on the word “executed” to show the execution of the old lady’s will, alongside the execution of the Sister for the offences of murder; a metaphor where legal event has extra-legal significance.

There’s a common understanding that lawyers, as a class of professionals, in their transactions outside their profession, in the social stream, are peculiar and outstanding. It is not difficult for a non-lawyer to not be awestruck by a lawyer’s presence. It is this dimension of the law people, which Cecil captures in his story, Proof,[8] where the protagonist, who has had his own set of failures in his cut-short legal career (if it may be called a career at all) recollects meeting at a hotel bar a “pompous self-satisfied little lawyer from London.” As he was feeling dejected by the lawyer’s presence, to whose community of profession he had been particularly averse to, there came in two strangers talking as to how their recent trek had been a waste of time. Then, an old man who until then had not received his due attention, retorted as to how there was a more tragic story that he had to share about a detective and a possible criminal lost their lives in a remote forest by falling over a mountain. As everyone in the group lamented on the loss of energies incurred in the futile transaction to save one person’s life therein; the lawyer, trained in courtroom mannerisms interrupted:

Very interesting, but d’you suggest that the story is true? … The story can’t be true…as no one saw them die and they could have told their story to no one, you couldn’t possibly know that it happened as you have told us.”

John Grisham’s The Firm[9] is perhaps a classic case of representation of the legal profession; where American legal realism comes into play, as a firm is shown to be a mechanism to siphon off illegally earned money.[10] Posner has an interesting remark to make in this regard:

Just as in some cultures a woman is either a saint or a whore, so in American popular novels a judge or a lawyer is either a saint or a crook -usually the latter.”[11]

This concluding interjection by the lawyer, is described as his “triumph” by Cecil. It does not come as much surprise, since lawyers are known by the non-lawyers as people for whom it is not difficult to dominate and triumph in day-to-day transactions and conversations. Their reliance on technical aspects such as proof and evidence are often made fun of.

From legal interactions and processes, we move on then to the judicial process and court system. What happens in courts, makes up a great amount of “drama movementr-verbose landscape that characterises -spanrpretation to supplement my awareness of the legal system and the judicial ”[12] for those who strive to write literature. But some scholars in the law and literature movement have pointed out that the focus on law or court procedures is only a means[13] to focus on the large looming issue or question that a fictional writing seeks to bring across.[14] For them, To Kill a Mockingbird is a “good-natured didactic entertainments intended to promote good race relations and more broadly, democratic and egalitarian values.”[15] The hostility towards lawyers in popular culture has a long history attributable to the likes of Chaucer, Shakespeare, and Dickens.

But then, my response is: isn’t the same true of the law itself? Law, on its own, is nothing except a discipline and process regulating and facilitating the “constitutive other” when it is “cognitively open[16] to other fields of human life such as society, politics, economics and media. Thus, any literary imagination of the law in the form of court proceedings will have a larger looming issue behind the “brooding spirit” of the law.

The idea always seems to provide the law with an issue to play with and focus resolving. Thus, the criticism to the law and literature movement is just as much true as it for the discipline of the law itself; that it is an appropriating, a discipline dependent on other disciplines. It would not be wrong to say that representations of court proceedings in fictional literature does inform us on what court processes are perceived as by non-lawyers, or by lawyers when they are not exactly immersed into the law question, and are writing from a detached point of view of an author. Thus, Cecil’s stories may be termed as what Ronald Dworkin has called “creating while interpreting,[17] when he steps into the shoes of a critic; detached from his role as primarily a law person in action.

In Mock Trial,[18] Cecil combines what have been seen as threats to the independence and autonomy of the judiciary, with the complex and well-defined procedures prevailing the the judicial process. When a judge’s daughter is kidnapped for securing acquittal of a prisoner, the policeman, who is the narrator, comes up with a plan to kill two birds with one stone. He enacts a mock trial, where it seems till the middle of the story, that the prisoner is acquitted. However, the reader comes to know that tis is not the case, when he is re-arrested and brought back to court for the pronouncement of the verdict by the jury. This mock trial was enacted keeping in mind one small detail about the jury trial procedure, that the jury, through the foreman must deliver the verdict. In the story however, to avoid the judge losing her daughter, the policeman enacted a “mock” where he replaced the actual jurymen with his people and staff. Once the actors delivered the verdict, the judge’s daughter was released and taken to safety. But, when the prisoner was brought back to trial, the real jury, surprisingly acquitted the prisoner! What a twist of tale yet again. But the narration and style are phenomenal. When the putative jury of policeman delivers a verdict of “not guilty,” the American lawyer who is listening to the narration along with the reader of the story, is at once amazed as to whether a judge can sum-up to secure an acquittal to meet extraneous considerations such as saving his daughter? The divergence between natural law and positive law has always been a fascinating one in the discourse of law and literature. The delivering of verdict by a putative jury might be bad in positive law; but the overall scheme of affairs and the factual positon make it seem good in natural law; and thus a parallel may be draw between Mock Trial and the “historical jurisprudence” in Euripides’ play in Hecuba.[19] Richard Posner has called such dichotomies as “antinomies of legal theory”.[20]

Who does not like to secure a judgment beneficial to his or her interests? But to what extent does one go on to achieve a judgment that furthers his interests? Does one go on to bribe the judge? Cecil’s story Striking the Balance[21] very well captures the common notion that justice can be bought, and purchased through intermediaries such as the protagonist of the story, Tommy Newcastle. What is as insightful as remarkable is the way in which the story begins by what Cecil has termed as the “examples which show how careful both judge and jury are to see that their reputation for integrity remains as high it is.” These examples relate to when a juryman recuses himself from the case for having met or been acquainted with the prisoner or the mention by a judge that he has some public shares in a company which is one of the parties in the suit before him. The reader, while at first may be disgusted to know how Tommy mends his way with the justice delivery, but is appeased and satisfied when the story ends with re-instating their faith in the English legal system’s integrity and credibility as a fair and just mechanism.

In a landmark English case on a similar subject, R. v Sussex Justices, Ex parte McCarthy,[22] Lord Herbert, CJ for the High Court gave currency to the aphorism that “Not only must Justice be done; it must also be seen to be done“. And it is here that I wish to place Henry Cecil’s writing of this story into a perspective. As a judge, a person within the system, he could not have over assumed his powers as a critic, and bombarded the English legal system with scandalous revelations. But, whether Cecil’s fictional account in Striking the Balance is true or rather giving into normative claims of impartiality of the system of which he was a part, is a question the answer to which nobody except Mr. Cecil would know.

If not bribing, then perhaps “bench-hunting,” or “forum shopping” across jurisdictions is the most commonly observable practice among attorneys to find a favorable judge who can hand in a favorable judgment to his client. This is more pronounced in common-law jurisdictions where the court does not sit as a whole, but disjointedly as different judges or benches who/which pronounce the judgment on behalf of the whole court. The Limit[23] is partly reminiscent of what Posner in his book has termed as “logic of revenge,[24] where a litigant (Mr. Rufus Catchpole) who has suffered from an adverse judgment takes a vow to not let that judge, Justice Mr. Broadbent decide any other case until his superannuation. To this end, he stages a false case (Tiptree versus Ansthuruther) before him, where he has two parties who are fighting on perhaps every or any available issue or question of law. The strange and mind-blogging point about the story is that the judge had an option to retire before the case had even started. It was all about his preference. Acting prematurely (which incidentally, quite a few lawyers do!), it was quite ironic to his intentions that multi-millionaire Mr. Rufus Catchpole’s staged litigation actually became the cause for Mr. Justice Broadbent to not to retire, and serve on the court for three more years! The irony resounds the strange ways of vexatious litigation. The story, perhaps wanted the readers to realize that judges have their own thought process, which will always remain a step ahead of the lawyers and the common litigants. However, the plot is quite interesting for anyone to go through if he is interested in courtroom lawyering, and its mores and folkways.[25]

Similar however contrasting to the aspect of delays and backlog found in The Limit is the insight into a judge’s mind in granting adjournments captured very aptly by Cecil in his story The Application.[26] There one Mr. Justice Frinstead, who known for vehemently dismissing applications seeking adjournments by barristers arguing before him is fumbled waiting before his Death (which has been personified) to whom he makes an application to adjourn for the frank reason he supplies to live longer. This is then paralleled to the next morning when he grants an application for an adjournment by a young lawyer frankly citing the reason that he has not prepared for the case. But, the reader is not astonished until he gets to know that Justice Frinstead dies the very next moment! The connections that Cecil makes are astonishing. Apart from a good literary sense of a twist in the tale, and a rapidly moving narration; the story vividly captures the questions encountered by lawyers and judges alike when adjournments are debated and discussed.

Lawyers and judges share a frank yet restricted relationship. The ways in which they interact and engage in a dialogue provide remarkable insights into the judicial process. Although The Nightmare[27] seen holistically may better fit into what some scholars in this discipline have termed “literary indictments of legal injustice” or the “law as literature” approach where it is believed that imaginative literary works are also reflective of “cultural artefacts” and sociological facts such as of capitalism, exploitation and oppression. Although this does not come as explicit as it comes in Shakespeare’s Hamlet through the soliloquy beginning with “To be or not to be, that is the question,[28] Basil’s life in the nightmare is one which might push him or is just at the verge of pushing him to contemplate suicide. However, I focus more on that part in The Nightmare where the prospective employer, the Secretary of the Bedside Manor Property Company Ltd. enlightens the half-protagonist Basil Merridew of how and why the bad debts which their tenants owe to them as uncollected rents (as arrears) are in fact not recoverable by the court processes by way of recovery suits. There the secretary recalls the court engagement of their solicitor, Mr. Bump with the county court judge. It is remarkable in the sense that the judge has no option but to adjourn the case; which makes the secretary believe that the oppressed tenants never be at the receiving end. What is also parallel to real life litigation practice is how and why the company gets to engage and instruct Mr. Bump. He goes on to say on record that “Bump…isn’t much good but he’s the nephew of our managing director and we have to use him.” The other aspect of this story is how the policeman distrusts Basil’s claim (a few days after he was on the job) that someone robbed him of his collection at the end of the day. This is a poignant reminder of how the law and legal structures (including the police) operate in favor of dominant classes and against poor people like Basil. What is also insightful of this story is the relevance of different dichotomous sides of the same coin which a person may stand. This ideological standpoint, which people choose to take has a strong influence on their life choices. For lawyers, taking sides is a matter of everyday professional workspace!

The Patient[29] is a rather comical story, where the protagonist, formerly Smith, is a trained dentist, and is at once sued for negligence. Mr. Smith treated the case rather foolishly, since his case, as Cecil points was not “cast iron.” The narration of his cross-examination by the plaintiff’s Queen’s Counsel is hilarious and half-witted. However, after losing the suit, he changes name to Lionel Parsons and restarts his practice as a dentist. The order of the payment of damages by the judge Mr. Pantin against Smith dentist can be seen as an instance of the practice of “jurisprudence of prudence,” where he does not pass an injunction against the dentist; so as to fulfil the motive of economic efficiency.[30] This comes under criticism from legal formalists, but nonetheless frequently practiced by the judges. The dentist however retains a deep grudge against that Counsel, who according to him, asked “ridiculous things…and didn’t knew the first thing about the case.” However, the latter half of the story sees a High Court judge, Justice Mr. Charles seeking appointment from Mr. Parsons. He is very excited since he does not have much business anyways. Everything goes on fine with the appointment, including the dentist sharing his memoirs of courtroom with the judge. But, after the judge retreats thanking him for seeing him at a very short notice indeed; his secretary Miss Croombie, who was too good a secretary for the crooked dentist he was, told him that the person whose teeth he had just mended was the same Queen’s Counsel who had cross-examined him before Justice Pantin; and now he had been elevated to the position of judgeship. As a reader, I was expecting more of it to continue in the form of a further engagement between the new judge and the dentist in the form of disagreement on the quality of treatment. But, as it is with short stories, they often leave you with expecting something more; and you realize the open-endedness and cherish filling the void with whatever pleases you. This leaving of a void in the end is a recurrent aspect to be found in Henry Cecil’s stories.

The serious business that lawyers engage in understood in terms of legal principles and canons of jurisprudence. Henry Cecil’s stories cur across, and intersect at multiple levels of this legal framework. In I Killed Gordon McNaughten,[31] the protagonist, who is also the narrator, goes on to explain the precarious situation his friend Jimmy; who after he had been acquitted of murder on his alibi, wrote an article in the local newspaper titled “I Killed Gordon McNaughten.” It created headlines. The principle that Cecil plays on is that of autrefois acquit (French for “previously acquitted”), where a person cannot be tried for the same offence twice. Jimmy was arrested, tried for perjury (making false statements in court), and obtaining money on false pretenses. He was convicted. But the turning point is that, he was indeed innocent; and the remarkable aspect is the way in which the truth unfolds on a statement by Jimmy to the author that he knows that Jimmy is innocent, only because the narrator confesses in the last line of the story: “Quite simply, because I killed Gordon McNaughten.”

The Wanted Man[32] is another story with a nail biting plot where a person known by the name of Mr. Patridge lived under mysterious circumstances in a neighborhood. Nobody knew of his past, or of his work, or of his family. But he was a generous man with pleasant sense, and who “took advantage of every opportunity of being of some use, however slight, to anyone who came his way.” Discussion about the crime (as is common with many people) was a frequent activity for them. Once a Colonel tangentially remarked of a prisoner who had been missing for the past two years, to which Mr. Patridge jokingly remarked: “It’s not me.” However, later people drew a possibly true inference, but they did nothing about it. After a year, the escaping prisoner, George Brown was caught in London, as shown by the news. Those who had developed an antagonism towards Mr. Patridge thinking that he was that very escaping prisoner, decided to go with a bottle of beer and champagne to apologize. They go to his place, only to be greeted by a detective inspector investigating George Brown’s latest abode before being arrested! What an unpredictable and seemingly co-incidental end to the story that could have been otherwise been more obvious.

Judges occupy a special place, not only in the legal system, but also in the society. As dispensers of justice, they must be fair, reasonable, independent yet accountable. The title of the collection of short stories goes by the title Portrait of a Judge. Perhaps of all actors in the legal system, qualities and traits of judges have been the most frequent subject-matter of discussion. It is but obvious for Cecil to have expounded some qualities that judges must possess, and which judges ought to stand by. It does not seem a mere chance that the opening and closing stories of the collection, both have as their protagonists, as judges.

Portrait of a Judge[33] is a story about the oldest Queen’s Bench judge who did not seem to have any intention to retire anytime soon, Justice Mr. Pantin. He had a record of passing severe sentences, though in a reasoned fashion. All in all, he had been a fair judge. Now he was crippled, with gout in both his feet, making him immobile for the most of his time. He was off for a weekend to the country, retiring to read, eat and meditate until his caretaker Mary came back from London. Just when he had finished reading an article in the Law Quarterly, a stranger gave a surprise visit to the judge, who was sitting in the garden. Mr. Justice was immobile for the moment, compelling him to listen to the visitor. The visitor began by referring the judge to the fact that some years back he had sentenced one of his friends to death; and he attributed his conviction to the judge’s summing up to the jury. He had two things to do with one in the alternative of another: to make the judge realize of his error in judgment; and if he did not concede to it; to kill him. The judge recollected, and made an intellectual re-visit to the case to realize that he had correctly applied the law while convicting Frank Turner. The facts of the case at hand are apparently very similar to the very next story in the collection, I killed Gordon McNaughten, but with changed names. Then the visitor goes inside the judge’s house to get a shotgun. Cecil tries to show that criminals are in fact, smart. And this one had foreseen himself convicted if he did not take enough care to leave no evidence of this transaction. Thus, he planned to hand over the shotgun to the judge, and make it appear that the gun went off in a duel between the two of them and the bullet hit the judge as an accident. But, Cecil does not stop here. How can he let a judge be killed? His judge Justice Mr. Pantin is smarter than the criminal and kills the man when he has control over the shotgun with all his strength! One just begins to sympathize with the poor old judge when Cecil’s master stroke ending takes the reader in awe. Who said that judges need the popular sympathy, as in the words of Alexander Hamilton in his The Federalist Papers, judges “lead by persuasion, not coercion, and by example rather than regulation.”

The last placed story in the collection, The Wife in the Train,[34] in its plain procedural construct, is notable for its emphasis and attention to the detail. Till the very last lines of the story, the reader is hell bent to assume that it is the wife of a particular convicted person who is mentioned in the title; only to realize his shortfall that it was the wife of the barrister in the story, of Mr. Blaize. The story begins with a courtroom scene where the foreman of the jury is about to deliver the jury’s verdict; seemingly disturbed by the abrupt entry of a beautiful young woman.[35] The verdict is delivered convicting the accused. Thus Judge at the Old Bailey is said to be a fair judge, who “did not summed up one way or the other…he felt impartial.” What becomes contentious now is the question of punishment. The judge has the liberty to either impose a fine on the guilty or sentence him to imprisonment. Then Cecil goes on to describe the attributes of the Judge, Mr. Brace; whose worst fault he says is “not liking to be corrected.” He understood his fallibility, but would not like to be reminded of it by someone other than himself. Of this Cecil has the following to say: “No doubt it flowed from conceit, which is an inevitable occupational disease of the Bar as a whole.” (Emphasis supplied). The young and confident counsel for the defendant, Mr. Blaize stood up to argue for making a plea that the interests of justice would be better served by imposing a fine.[36] This was not acceptable to the judge, who held onto an incorrect position that a rich man cannot be made to pay fine, and escape imprisonment. Sir James Fitzjames Stephen had asserted that it is “highly desirable that criminals should be hated.” He has vehemently argued that imposing fines against affluent criminals would fail to “quench the thirst” of public for vengeful justice since it lacks the idea of a suffering by the criminal.[37] Here, the literary tool put to use by Cecil is of a conversation between the barrister and the judge; which has its far-reaching consequences in the later part of the story. This was and is a wrong view of the law (and even theory and logic) of punishment. But, the order of the day was that the young fellow had to serve in prison for twelve months. After six months had passed, the judge encountered the same young woman who had entered the court on that day. The woman bravely came to terms with the judge, and by the end of the journey, Justice Brace was convinced of his fault, and conceded his mistake and also undertook to apologize to the young attorney whom he had not behaved properly with in the court. The reader flips the page to end reading the collection, only to learn that the woman was the wife of the young counsel, Mr. Balize, when all three of them bump into each other at garden party at one of the Inns of the Court!

 Another tangential idea that the story explores is of false implication of innocent people in the commission of crimes. This comes live when the wife threatens the judge to comply with her request lest she should raise an alarm of sexual harassment by a judge!

Whether something of this sort could be achieved in an actual set up is not subject to much debate. It is very difficult to get along and ask judges to follow a particular line. Imaginative literature in my opinion, gives this autonomy to correct the wrong positions of law taken by the courts. One may wish it were so easy to correct the “wrong precedents” set by courts of the past!

CONCLUSION

Thus, what is perhaps the best quality of Cecil’s short stories is their open-endedness and leaving a void to be filled only with the reader’s conscious awareness of the law and society. In this sense, the reader is born with the “Death of the Author.”[38] This is uniquely the case with short stories due to the structural limitations of writing in that format. Coming to the literary appraisal of legal representation; I am of the opinion that the short stories by Henry Cecil capture the legal system’s virtues and vices through literary tools and instruments such as twists in the tale, unpredictable plot, attention to the detail, personification, usage of metaphor and focus on the identities. Reading these stories has been what George Eliot expressed as “extension of [one’s] sympathies,”[39] in a sense wherein my interpretation, guided by Dworkin’s “Aesthetic Hypothesis,” resulted into reading the literary text to find the best possible interpretation to construct my critical awareness of the legal system and the judicial process.

Lawyers therefore must open themselves to cognition from other disciplines; so as to cultivate a humanized understanding of the law. To be more aware is always better; and lawyers are no exception to this rule. Talking of exceptions to rules, we go back to what Posner has termed as the “antimonies of legal theory”!


[1] James Boyd White, Reading Law and Reading Literature, 60 Texas Law Review 415-445 (1981-1982). He argues that reading such material is “essential” to a lawyer’s work.

[2] Felix Frankfurter, Associate Justice, U.S. Supreme Court in his letter to M. Paul Claussen, Jr. (May, 1954), In The World of Law: The Law As Literature, 725 (Ephraim London Ed., 1960), says that :

No less important for a lawyer is the cultivation of the imaginative faculties by reading poetry, seeing great paintings … and listening to great music. Stock your mind with the deposit of much good reading, and widen and deepen your feelings by experiencing vicariously as much as possible the wonderful mysteries of the universe, and forget all about your future career.”

[3] Henry Cecil, Portrait of a Judge and other short stories (1964).

[4] Henry Cecil, Portrait of a Judge and other short stories (1964) at pp. 99-113.

[5] Henry Cecil, Portrait of a Judge and other short stories (1964) at pp. 18-30.

[6] “The Special Relationship” is the unofficial term in vogue for the exceptionally close political, diplomatic, cultural, economic, military and historical relations between the United Kingdom and the United States. Reference here is to the legal/juridical equivalent of this relationship between a client and his attorney.

[7] See the literary depictions in novels such as The Firm by John Grisham. For an academic discussion on the topic See David Ray Papke, The Impact of Popular Culture on American Perceptions of the Courts,82 Indiana Law Journal 1225 (2007), and Victoria S. Salzmann and Philip T. Dunwoody, Prime-Time Lies: Do Portrayals of Lawyers Influence How People Think about the Legal Profession?58 Southern Methodist University Law Review 411 (2005).

[8] Henry Cecil, Portrait of a Judge and other short stories (1964) at pp. 148-152.

[9] John Grishan, The Firm (1991).

[10] Posner also notes that Grisham’s most recent novel, The Appeal (200) is perhaps a better depiction of the problems faced by the American Legal Realism. See Richard Posner, Law and Literature, 3rd edn. (Harvard University Press, 2008), ‘Ch. 1: Reflections of Law in Literature’ at p. 57. Thus, in my opinion, suggests a growing maturity to recognize that literature has, at the very least, started depicting law and legal processes accurately.

[11] Susan Bandes, We Lost It at the Movies: The Rule of Law Goes from Washington to Hollywood and Back Again, 40 Loyola of Los Angeles Law Review 621 (2007).

[12] It is noted that Richard Posner disagrees with some scholars drawing a parallel with Aristotle’s finding dramatic appeal and significance in tragedy to the spirit of law, which he believes has no dramatic value. See Richard Posner, Law and Literature, 3rd edn. (Harvard University Press, 2008), ‘Ch. 1: Reflections of Law in Literature’ at p. 34.

[13] For Posner, means is the “bait” or the “tease” like in Pudd’nhead Wilson, “in the sense that you think they are going to be about law but discover upon reading them that legal theme is just a bait.” See Richard Posner, Law and Literature, 3rd edn. (Harvard University Press, 2008), ‘Ch. 1: Reflections of Law in Literature’ at p. 36.

[14] Richard Posner has argued in this vein, exemplifying James Gould Cozzens’s novel The Just and the Unjust (1942) as not being directly about the law, but about political philosophy. Similarly, he is vehemently against reading law into Hamlet or Iliad, which capture the phenomenon where “youthful idealism is tempered with realism through a series of crises” which happens to be projected behind the apparent veil of legal process. See Richard Posner, Law and Literature, 3rd edn. (Harvard University Press, 2008), ‘Ch. 1: Reflections of Law in Literature’ at p. 36.

[15] Richard Posner, Law and Literature, 3rd edn. (Harvard University Press, 2008), ‘Ch. 1: Reflections of Law in Literature’ at p. 53.

[16] Niklas Luhmann, Law as a Social System, Trans. K.A. Ziegert, (Oxford University Press, 2004) at p. 498; N. Luhman, A Sociological Theory of Law (1985).

[17] Ronald Dworkin, Law as Interpretation, 60 Texas Law Review 527-550 (1982).

[18] Henry Cecil, Portrait of a Judge and other short stories (1964) at pp. 181-190.

[19] William Arrowsmith’s translation of Hecuba in The Complete Greek Tragedies, vol. 3: Euripides 495 (David Grene and Richmond Lattimore eds. 1955).

[20] See Richard Posner, Law and Literature, 3rd edn. (Harvard University Press, 2008), ‘Ch. 3: Antimonies of Legal Theory’ at pp. 124-169. Such antimonies, he notes “inform a number of distinguished literary works that constitute in the aggregate, a supplemental course of reading, of unsurpassed vividness, to the philosophical and legal literature of jurisprudence.”

[21] Henry Cecil, Portrait of a Judge and other short stories (1964) at pp. 153-165.

[22] [1924] 1 KB 256; [1923] All ER Rep 233.

[23] Henry Cecil, Portrait of a Judge and other short stories (1964) at pp. 166-174.

[24] Perhaps in a slightly different and also a dimmer light, OW Holmes’ inference that the law grows out of revenge can be applied to this particular short story. See Oliver Wendell Holmes Jr., The Common Law, at pp. 2–25 (1881).

[25] “Binder and Weisberg offer…an example of how one can read a trial to discover the social forms, rituals, and mechanisms of meaning that underlie its apparent function.” Richard Posner, Law and Literature, 3rd edn. (Harvard University Press, 2008), See p 13.

[26] Henry Cecil, Portrait of a Judge and other short stories (1964) at pp. 56-60.

[27] Henry Cecil, Portrait of a Judge and other short stories (1964) at pp. 122-141.

[28]To be, or not to be” soliloquy reveals a mind that sees both sides of every question and devises ingenious rationalisations for inaction. More than a habit of mind is involved.” See Richard Posner, Law and Literature, 3rd edn. (Harvard University Press, 2008), See ‘Ch. 2:  Law’s Beginnings’ at p. 111.

[29] Henry Cecil, Portrait of a Judge and other short stories (1964) at pp. 68-81.

[30] This is a major theme of the book Richard Posner, How Judges Think, (Harvard University Press, 2008).

[31] Henry Cecil, Portrait of a Judge and other short stories (1964) at pp. 13-17.

[32] Henry Cecil, Portrait of a Judge and other short stories (1964) at pp.175-180.

[33] Henry Cecil, Portrait of a Judge and other short stories (1964) at pp. 1-9.

[34] Henry Cecil, Portrait of a Judge and other short stories (1964) at pp. 191-206.

[35] The participants in the story are an audience, separate form the reader; and constitute meaning making through engagement at the internal level itself. Richard Posner, Law and Literature, 3rd edn. (Harvard University Press, 2008), See ‘Ch. 1: Reflections of Law in Literature’ at p. 34.

[36] Whether we can conclude that vengeful feelings play an important role in the administration of law and justice even today is a debatable proposition. See Oliver Wendell Holmes Jr., The Common Law 2–25 (1881).

[37] Stephen, A History of the Criminal Law of England, vol. 2, p. 82 (1883). See also Steven Eisenstat, Revenge, Justice and Law: Recognizing the Victim’s Desire for Vengeance as a Justification for Punishment, 50 Wayne Law Review, 1115, 1165–1168 (2004).

[38] Roland Barthes, The Death of the Author, Image, Music, Text, transi. Stephen Heath (New York: Hill & Wang, 1977), pp. 142-14.

[39] George Eliot, The Natural History of German Life, Essays (Edinburgh, 1884).

A veil of Constitutionalism over Demosprudence?

I have been wanting to write this post for quite some time now. But due to exigent commitments, as I see them in retrospect, had been holding me back. Coming straight to the issue. At focus is the order delivered by a division bench of Justices Dipak Misra and Ranjan Gogoi of the Supeme Court of India, in the case of Shyam Narayan Chouksey v. Union of India on the 30th of November, 2016.

The following excerpt from the five-pages long order is the cause of debate over the theoretical underpinnings of judicial dictum.

“d) All the cinema halls in India shall play the National Anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the National Anthem.

(e) Prior to the National Anthem is played or sung in the cinema hall on the screen, the entry and exit doors shall remain closed so that no one can create any kind of disturbance which will amount to disrespect to the National Anthem. After the National Anthem is played or sung, the doors can be opened.

(f) When the National Anthem shall be played in the Cinema Halls, it shall be with the National Flag on the screen.”

Apparently, the order rodomontades Jürgen Habermas’ idea of “constitutional patriotism”. The sine qua non of this theoretical instrument is pluralism, as against majoritarianism and Utilitarian’s number game or in one word, cosmopolitanism or homogenisation of diverse peoples. However, this is what causes the most trouble.

In his 2001 paper, Constitutional Democracy, A Paradoxical Union of Contradictory Principles?, Habermas has argued as to how constitutionalist principles go for a toss; and are in many ways, irreconcilable with the core framework in which democracy operates-“the greatest good of the greatest number.” The minorities-linguistic, cultural, social, and political find themselves trapped in a nationalist cosmopolitan discourse.

What does not go in line with the apex court’s order is this idea of pluralism and liberalism. It was not that people sans this judicial intervention were not observing due regard towards the national anthem. Thus the order, in a sense, is fruitless, if not counterproductive. Rather than invoking commonality and brotherhood, the preceding of movies now must be subjected to a forced imposition by a court of law. Now, I hope that the films are made more with the function of capturing and targeting the audience’s complete attention; for them to forget about their standing act’s foundation rooted in coercion, firstly by a court of law, and secondly (if some of them chose not to stand in ‘honour’) by the right-wing Bhaktas in the audience.

Thus, the order bespeaks of a quality, which in my sincere opinion, with due respect to the apex court, it lacks and is thus devoid of. Reverence to national symbols is not the same as their imposition. Liberalism must not take a back-seat in the democratic experiment that India has been taking for the last 68 years now. The court has done great things for this country; let it not undo them by engaging in petty and mindless “application.” With this, we come to the hypothesis laid down by Professor Upendra Baxi, where courts of law, or rather specifically, the Indian Supreme Court has been in a functional variant of populist law-making, much akin to the role ought to be played by the legislators as per Montesquieu’s doctrine of separation of powers. Professor has termed this tendency of the Supreme Court as “demosprudence“. Can this be an explanation to the order under consideration here as well? With this question in mind, I intend to close the discussion; and perhaps reflect back after I see Mr Baxi here at NALSAR in the February of 2017.

But, what cannot be understated is the theoretical importance of this recurring paradox of constitutionalist aspirations with democratic realities; and the more important role to be played by courts of law, co-working as unelected part of the ‘State’ structure with the popularly elected legislatures.

With a strong and popular government in power in India now (until 2019), what is to be cautiously looked forward is this very question: how does the Indian supreme court remain independent, free of influence from populist and majoritarian considerations? The court will get many temptations, but it should take cognisance of its sacrosanct role, and great history, to look forward to nothing but to a greater future as a guardian of India’s constitutional ethos and values.

The Tale of Two Trials: Historical Legalism

The two trials that I wish to comment upon bear significant bearing on the growth of both law, and history at their distinct levels. The attempt is to analyse the two historical events and evolve a scheme to explain the evolution and changes brought about in legal systems over a period of time.

Second Tilak Trial: In 1908, Bal Gangadhar Tilak authored a two articles in his Marathi mouthpiece ‘Kesari,which became the subject matter of a charge of sedition by the colonial government, culminating into a trial in 1909 by a jury directed by Justice Davar, at the Bombay High Court. Tilak was convicted and sentenced for six years’ imprisonment. This was accompanied by seemingly casual but grave and solemnly “disparaging” remarks by Justice Davar as to the means adopted by Tilak in particular and Indian nationalist struggle in general. Tilak was transported to Mandalay in Burma.

Mahatma Gandhi’s Sedition Trial: In 1922, Mahatma Gandhi, in a similar, or rather a more aggravated vein had authored three sets of articles in what he started as ‘Young India.’ Gandhi was tried for having committed the offence of sedition by ‘exciting disaffection’ against the ‘Crown Representative established by the law’ in 1922 at the Ahmedabad Sessions Court, by Judge CN Broomfield. Gandhi too was convicted, and awarded the very same punishment. But, what was different in this case was the reverence and consideration by Judge Broom field to Gandhi and his methods in no equivocal terms. Reliance is placed upon S.B. Kher, The Law and The Lawyers by M.K. Gandhi, 108-126 (1962 Navjivan Trust).

The function of an historiographical exposition is to uncover the differences across various entities such as place, time, culture, nation as to the sense of what constitutes the “past.[1] It is this which establishes a “dialogue” between the past and the present, thus shaping the perspectival discipline known as “history.”[2]

Law, in that sense is in deep affection with the idea of a chronology; it develops as time progresses.[3] Legal evolution is grounded on temporal underpinnings of what we understand as the requirement for order and regulation.[4]

The two trials, grounded on the same positive legal formulation,[5] in the form of a written statutory provision, offer starkly contrasting consequences in the form of the dictum of two courts forming a part of one jurisdiction, and one state system.[6]

From Tilak’s conviction to Gandhi’s, there seems to have been a shift in the juristic policy,[7] reflecting the bigger changes in the wider governmental apparatus vis-à-vis the Indian nationalist movement.[8]

Perhaps, of a similar magnitude were the changes occurring at the side of the government, or even more profound, as were the transformations in the means, methods and demands being made by the nationalists.[9] The latter had evolved from seeking more representation within the British scheme of governance to dominion status, and later to Purna Swaraj, or complete independence.[10] This seems to have effectuated policy shifts on the side of the Raj as well, making it proportionately aware of its shortcomings and lapses in carrying out the government.

The historiographical contention being proposed here is as to the way in which Judge Broomfield, in his capacity of being the mouthpiece of the law, seems to have made the law a “respecter of persons,” while unnecessarily and inconsequentially making the futile caveat to the contrary in his judgment.[11] This is both, in furtherance of, and despite the dozen year old case of Bal Gangadhar Tilak, decided in 1909 by Justice Davar of the Bombay High Court.

Therefore, Judge Broomfield’s way of looking at the past (where he used Davar’s dictum as a “precedent”), is in one way adopting the past into the then present, and yet traversing a path unknown to the past. His obiter takes a stance which is at the other end of Davar’s musings, and thus re-interprets the Indian nationalist struggle in his own way, being the veil of his judicial function of deciding punishment for Gandhi’s commission of the offence of sedition.

Therefore, I draw a distinction between historical prominence and magnificence on the one hand, and “judicial precedent[12] on the other. An integral ingredient of a precedent is its reasoning.[13] Therefore, Broomfield’s reliance over Davar’s judgment did not give in to the judicial notion of a precedent, but to the prominence of his judgment as a prominent historical fact, which couldn’t have been afforded to be ignored in this “similar” case of Gandhi’s commission of the offence of sedition.

In the sense of it, the requirement of stare decesis is not fulfilled by Davar’s judgment, for the fact that the considerations which played in there were very different from those in Gandhi’s trial. Broomfield’s disposition, while pronouncing the judgment was drastically different from the pessimism of Davar. Precedent entails to “stand by things (already) decided,” which was certainly not the case with Broomfield, for he stood at a distance from Davar, and the only convergence being in the form of sentence awarded in the form of punishment.

Within the Larger Picture: Colonial “Justice”

Justice, both as a conception and as an ideation, has no uniform or universal sense.[14] The divergent and dichotomous relationship between Indian nationalists and colonial governmental vis-à-vis their conception of what constituted fair, just, and reasonable is well understood

What, on the contrary is remarkable is that this divergence comes on the face of the very same system. This comes into paly when a native English judge (Broomfield) was relatively fairer to Gandhi in his obiter than a native Indian Justice (Davar) was to Tilak. Further, this had to take place within the same colonial overarching instrument of the state machinery, the judiciary.

This changing constant, as I would like to put it, what sets apart judges from other administrative or official authorities within the largest political ideation of the state. How are judges both ‘changing’ and yet ‘constant’ is a matter of extended historiographical analysis and discussion in this sense. Judges, it must be noted, while they are nonetheless functioning within the larger system, which remains static; they are yet at the same time considerably free and autonomous.[15]

This calls for an apt reproduction from Judge Broomfield’s judgment which was more fair to the Indian nationalist struggle than Justice Davar:

The law is no respecter of persons.  Nevertheless, it would be impossible to ignore the fact that you are in a different category from any person I have ever tried or am likely ever to try.  It would be impossible to ignore the fact that in the eyes of millions of your countrymen you are a great patriot and a great leader; even all those who differ from you in politics look up to you as a man of high ideals and of noble and even saintly life…I propose, in passing sentence, to follow the precedent of the case, in many respects similar to this case, that was decided some twelve years ago, the case of Mr. Bal Gangadhar Tilak, under the same section.  The sentence that was passed upon him as it finally stood, was a sentence of simple imprisonment for six years.  You will not consider it unreasonable, I think, that you should be classed with Mr. Tilak… if the course of events in India should make it possible for Government to reduce the period and release you, nobody would be better pleased than I.”

The historiographical contention here being that judges’ autonomous nature to rely or not rely on particular facts, which may have a historical bearing;[16] is tantamount to them being positioned on the driver’s seat and pass different judgments, relying on different facts.

From Davar to Broomfield: A Hazy Highness

Judges, when they speak for the courts, inevitably become the subject matter of not only contemporary criticism, but also historical research, and discussion.[17] The way the discipline of history has treated the two judges who decided over the two trials has been quite  dissimilar. This is in keeping with the nationalist -favouring tradition of history writing of the Indian freedom struggle.[18] This might seem to be a correct proposition, that judges are judged for what and how they judge. But, judging the judges is not usually or ordinarily detached or isolated from the notions of hierarchy entrenched and engraved in judicial administration, which takes place at multiple levels.

It is pertinent to note that Davar being a High Court Justice, and where as Broomfield belonging to the creed of Indian civil service offers, and serving as a district and sessions judge, shared a relationship of what has been termed as judicial deference and discipline.[19] Davar was over and above Broomfield in terms of his decision making authority and jurisdiction.

On the contrary, the history treats the latter favorably for his kind and considerate remarks over Gandhi, which are taken in contradistinction to Davar’s obiter in Tilak’s case.[20] The historiographical significance of this divergence in treatment is a trite. It is submitted that Broomfield’s cognition of Davar’s judgment was not in the form of judicial deference, but in its own ways, giving in to historical considerations.

Judicial Dicta and Reverberations: Verdict of History over Judgments

Judgments are operative instruments which have a binding and coercive effect at the time when they are delivered.[21] They influence, and determine human conduct through their own juridical logic. Historical treatment of judgments however, is not always in such a compliant fashion.

People from both the sides, those reading the law, and those studying history have come to terms with the inevitable condition where legal judgments are subjected to historical scrutiny.[22] This is a historiographical contention, wherein the sense which people make of their past legal and juridical works is altered by times and tides. Judgments too, in that sense, are “historical facts,”[23] and are therefore, nowhere above the verdict of the historians.

The jurisprudential narrative, according to which law is in the closet, isolated from scrutiny of the general or laymen public, is therefore attacked by the “historical materialism” which treats legal and juridical verdicts of the past.

But, can it be said that the historical verdict carries with it the potential to overrule past judicial pronouncements? That is a question, which however finds disputed answers. The same is apparent in the controversy of erecting the statue of Tilak in the quadrangle of the Bombay High Court; where a court caught in obedience to its judicial discipline, struggles to come to terms with the historical treatment meted out its “judicial pronouncement” under the colonial work. Chief Justice of the Bombay High Court, MC Chagla, came under scathing criticism for having made the suggestion that decisions of his predecessors on the Bench had been rightly decided against by the “inevitable verdict of history,” when he said as follows:

There is no honour and no distinction which I have valued more than the privilege of being able to unveil the tablet to Lokamanya Tilak’s memory this morning…That disgrace tarnished our record and we are here to remove that tarnish and that disgrace. It may be said that those convictions were a technical compliance with justice; but we are here emphatically to state that they were a flagrant denial of substantial justice.   He was sentenced for the crime of patriotism…Ladies and gentlemen, the verdict that our contemporaries passed on us, the verdict that our times passed on us, is not of much value.   We must always await the inevitable verdict of history.”

This apparent conflict between judicial finality and historical overruling is yet to find its final answer,[24] especially in situations where the overarching system of governance is decimated, but the old courts of law subsist, albeit with new persons.

Birth of a Nationalistic Jurisprudence: Appropriation of Justice

The law of Sedition has survived the British exit from India. This is the same law, for which the Gandhi had to say the following:

Section 124A, under which I am happily charged, is perhaps the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote, or incite to violence. But the section under which mere promotion of disaffection is a crime. I have studied some of the cases tried under it; I know that some of the most loved of India’s patriots have been convicted under it. I consider it a privilege, therefore, to be charged under that section.[25] (Emphasis supplied).

To say that the intentions to bring into the statute book, Section 124A were utterly anti-national and to further despotic colonial interests would be to add little to what has already been said by others.

What this paper, in this section, seeks to propose and prove is that trials such as those of Tilak in 1909, and of Gandhi in 1922, to be fully and wholly understood in terms of their significance, must be placed within the larger socio-political and juridical framework which can represent the developments taking place in the Indian nationalist struggle in general, and the twentieth century in particular.

The acceptance of the judicial pronouncement by Tilak post his trial, captured by the following extract, has come to exemplify how compliance of British-ordained judgments also, in its own logic, came to stand for causes that were nationalist in their character:

There are higher powers that rule the destinies of men and nations; and I think, it may be the will of Providence that the cause I represent may be benefited more by my suffering than by my pen and tongue.

Any historiographical explanation of these two trials, which were definitely not insulated judicial acts, but carried with them larger socio-political penumbral influences. The cases at hand, were to come handy at a later point of time, to the new ‘courts,’ and their new ‘characters’ to make an old law work in the new democratic setup, that India had built for itself.

It was to pave the way for a new Supreme Court to evolve its own jurisprudential basis for upholding the law of Sedition under the auspices of the Constitution of India. This was expressed in terms of its “Tilak Marg jurisprudence” through the challenges that came before it in an India independent of the despotic legal regime of the Raj.[26]

One another, historical proposition, which offers a beautiful sense of how nationalists made sense of this side of the past. They say that, in the case of Gandhi, if not Tilak, the state and its despotic instrumentality was put to trial, in converse by the ‘accused.’ The nationalistic accused’s fervent challenge and protest during the process of the trial, was interpreted to not only sustain, but give a new flavor to their means, methods, and ends.

The alternative version to the officialdom of trial; where the state was put to trial, is perhaps, a peculiar exemplification of historiographical exposition.[27] The different was to look at same instance(s) in the past is perhaps best captured by this nationalistic appropriation of juristic function, giving birth, in its own right, to what I term as nationalistic jurisprudence.

The idea that the state was indicted by Gandhi, is best captured and supported by this extract from Gandhi’s statement in the Court:

The law in this country has been used to serve the foreign exploiter. My unbiased examination of the Punjab Marital Law Cases has led me to believe that at least ninety- five percent of convictions were wholly bad. My experience of political cases in India leads me to the conclusion that in nine out of ten the condemned men were totally innocent. Their crime consisted in the love of their country. In ninety-nine cases out of hundred justice has been denied to Indians as against Europeans in the courts of India…In my opinion, the administration of the law is thus prostituted consciously or unconsciously for the benefit of the exploiter“.

Law and Conscience in a Historical Perspective

Gandhi quite openly remarked that he was not obliged to obey the law, which was unreasonable, unjust, and therefore contrary to his conscience, both in its letter and spirit.[29] For Gandhi, their legal system comprising of laws and courts was but a mere tool and technique and one of the many was through which the British Raj fulfilled its exploitative goals, when he said:

the administration of the law is thus prostituted, consciously or unconsciously, for the benefit of the exploiter.”

When looked at from a historiographical perspective, this tussle between law and conscience seems to have been influenced by the larger socio-political and economic factors within the social setup. For the shaping of one’s conscience, which ultimately takes a shape of something to be contrary to the law, is just but one instance where the enacted and posited law fails to capture the imagination of its subjects.

Gandhi’s statement during the trial, which has been described as an explanation to why “a staunch loyalist and co-operator should become an uncompromising disaffectionist and non co-operator[30] went as follows:

Non violence is the first article of my faith; it is also the last article of my faith; but I had to make my choice. I had either to submit to a system which I consider has done an irreparable harm to my country or incur the risk of the mad fury of my people bursting forth when they understood the truth from my lips.

Historiographical imagination suggests that this was not primarily due to the moral emptiness of the law, but for the unquenched moral thirst of the law makers.[31] The province of law, as Austin remarked, emanates from the command of the sovereign.[32] In this regard, where the law was inextricably linked with despotic interests and goals of British rule, there was dearth of reposition of faith in the law, for the legal rule makers where themselves in search for their own legitimacy.[33]

Anti-Positivist Notions of Natural Law: Historical Legalism

The attempt of this paper has been to establish a relationship between jurisprudential aspects of law and historiographical method of gaining sense of one’s past. When the law which was posited by Judges Justice Davar and Broomfield in 1909 and 1922 was a “good law” insofar as institutionalized British legal system was concerned with it. The nationalist ideation went in directions diametrically opposite to it; for the simple reason of ideological clash of what should have been lawful, was considered unlawful, by an “unlawful” and illegitimate authority which was “illegally” governing them. While for the British, the law still seems to be very clear on purely positivist grounds.

The same, however, cannot be said of the Indian nationalist thought. For them, the law enacted, the law applied, and the law interpreted by the British was inherently contrary to the moral principles of legal-rule making. While doing this, they were alluding to the principles of “natural law,”[34] which ought to and should govern every legal system, in whatever it does.

This positive law-natural law debate and dichotomy runs on the historiographical proposition of something on the lines of “historical materialism,”[35] which I would like to term as historical legalism.

It is through this process of historical legalism that one may understand and make sense of not only of one’s past, but also changes and transformations incorporated or made into a legal system across a span of time. This, has been succinctly attempted at by this paper by looking through annals of history, at the tale of two trials.

Conclusion

Thus, the idea of historical legalism as attempted to have been exposited is apparent at the level of two trials which have been taken as two distinct yet related events in the history of modern India.

It is through this process that once a natural law (but not a positive law as of then) may take the role of a positive law, later in the course of time, as would be determined by the process of historical legalism as explained above.

References

[1] K. Satya Murthy, Handbook on Research Methodology in History, 116 (1995 Sterling).

[2] E.H. Carr, What Is History?, 30 (1987 Penguin Books).

[3] SeeDarwin’s Excellent Adventure: Evolution and Law’, in Allan C. Hutchinson, Evolution and the Common Law, 23 (2005 Cambridge University Press).

[4] Louis E. Wolcher, Law’s Task, 169 (2008 Ashgate).

[5] Quintessentially, a statutory provision in the form of Section 124A, IPC.

[6] In the form of the colonial super state-structure.

[7] See ‘The Fruits of Macaulay’s Poison Tree’ (1985) in Partha Chatterjee, Empire & Nation, 91 (2010 Permanent Black); Rajeev Gowda et.al., Judgments, Decisions, and Public Policy, 9 (2002 Cambridge University Press).

[8] SeeColonialism, Stages of Colonialism and the Colonial State’, in Bipan Chandra, Essays on Colonlialism, 58 (1999 Orient Longman).

[9] See ‘Mass Nationalism-Emergence and Problems’ in Sumit Sarkar, Modern India, 165 (1983 Macmillan India).

[10] Sekar Bandyopadhyay, Nationalist Movement in India, 139 (2009 Oxford University Press).

[11] See S.B. Kher, The Law and The Lawyers by M.K. Gandhi 108-126 (1962 Navjivan Trust).

[12] SeeStare Decisis-A Sociological Perspective’ in A. Lakshminath, Precedent in Indian Law, 52 (2005 Esatern Book Company).

[13] See Arvind Narrain, “My Experiments with Law”: Gandhi’s Exploration of Law’s Potential, 6, NUJS L. Rev., 273 (2013).

[14] See Sudipto Kaviraj, Gandhi’s Trial and India’s Colonial State in Experiencing the State, 308 in Lloyd I. Rudolph et.al., Experiencing the State (2006 Oxford University Press).

[15] Walter F. Murphy et.al., Courts, Judges, and Politics-An Introduction to the Judicial Process, 60 (1929 Random House).

[16] Carlo Guarnieri et.al., The Power of Judges, 68-134 (2002 Oxford University Press).

[17] Walter F. Murphy et.al., Courts, Judges, and Politics-An Introduction to the Judicial Process, 3-24 (1929 Random House); Also see Cass R. Sunstein, Are judges Political?, 107-129 (2006 The Brookings Institution).

[18] David Hardiman, Gandhi in his Time and Ours, 238, (2003 Permanent Black).

[19] SeeHow I Decide a Case’ in Judge Robert Satter, Doing Justice, 63 (1990 Simon & Schuster).

[20] See Chief Justice MC Chagla’s speech, which the Bombay High Court’s website describes as “admirably patriotic, or patriotically admirable; but legally and judicially inexplicable and indefensible.” Available here http://bombayhighcourt.nic.in/libweb/historicalcases/cases/Second_Tilak_Trial_-1909.html (last accessed 1 September, 2016).

[21] R. Prakash, S.D. Singh’s Judgments and How to Write Them, 1-5 (2005 Eastern Book Company).

[22] Jonathan Seoharno, The Integrity of the Judge, 47 (2009 Ashgate); Also Dato’ Dr. Cyrus Das, Judges and Judicial Accountability, 255 in Soli J. Sorabjee, Law & Justice (2004 Universal Law Publishing).

[23] Fales, W., Historical Facts. The Journal of Philosophy, 48 (4), 85-94, (1951), Available at http://www.jstor.org/stable/2021436, (last accessed September 2, 2016).

[24] Penny Darbyshire, Sitting in Judgment, 406 (2011 Hart Publishing); Henry J. Abraham, The Judicial Process, 1-18 (1998 Oxford University Press); Also see Robin C. White, The Administration of Justice, 73 (1985 Blackwell Publishers).

[25] Mahatma, Vol. II, (1951) pp. 129-33, This speech is from selected works of Mahatma Gandhi Volume-Six; The Voice of Truth Part-I.

[26] Kedarnath Singh v. State of Bihar, AIR 1962 SC 955. And before the Supreme Court, the Federal Court had done something similar in Niharendu Dutt Majumdar v. The King Emperor, 1942 F.C.R. 38.

[27] See S.B. Kher, The Law and The Lawyers by M.K. Gandhi 108-126 (1962).

[28] Sekhar Bandopadhya, From Plassey to Partition and After: A History of India, 289 (2014).

[29] Richrd A. Myren, Law and Justice-An Introduction, 31 (1988 Brooks/Cole Publishing).

[30] Ramachandra Guha, Gandhi Before India, 115 (2013).

[31] Lon L. Fuller, The Morality of Law, 95 (1969 Yale University Press).

[32]  John Austin, The Province of Jurisprudence Determined and The Uses of the Study of Jurisprudence, 1-9 (1965 The Humanities Press).

[33] P.J. Fitzgerald, Salmond on Jusrisprudence,15 (1966 Sweet & Maxwell).

[34] Sir Thomas Erskine Holland, The Elements of Jurisprudence, 43 (1924).

[35] Historical materialism is a methodology to study human societies over a long duration of time and was first exposited by Karl Marx (1818–1883).