The common citizens, particularly, the informed section, are proud that we have one of the best and most comprehensive constitutions in the world. Our constitution has a specific chapter stating in great elaboration, the sacrosanct rights such as equality, freedom of speech and expression, life and personal liberty, faith and conscience, etc. By virtue of Article 32 when these fundamental rights are infringed, a citizen as a matter of right, is entitled to approach the Supreme Court directly without recourse to any other Court, though otherwise the law is that one shall invoke the jurisdiction of the lowest court of competent jurisdiction. The common people, even law students, budding lawyers, law professors and academicians believe firmly that the real courts function according to the set of constitutional and other legal principles. They believe that, that is the law. But seasoned lawyers and seasoned litigants know from experience that the constitution, the enacted laws and the settled legal principles are mere myth. The real law is what lawyers and judges do and practice in the name of law. The writ jurisdiction is asserted to be an entirely discretionary one. Article 136 of the constitution expressly states that “the Supreme Court may in its discretion grant special leave to appeal..”. The equitable remedies like injunction commonly known as ‘stay’ are all discretionary. We follow the common law. Article 372 of the constitution says so. The common law has its foundations in classical Roman law. But the classical Roman lawyers generally considered discretion as contrary to law, anti law. Though, jurists like Aristotle, Gaius, et al., were in favour of conferring discretionary power in furtherance of epikeia, equitas, equity.
In our law schools what is taught is the myth, the utopian scenario where the judges decide cases according to the constitution, statutes and settled legal principles. They are not told that the abstract concepts in the form of the constitution, statutes, etc. are not the real law. The real law is what lawyers and judges apply in deciding an actual case. The roman lawyers, particularly Ulpian, Cicero, realised this great limitation of humans as judges and believed that no judge can ever assuredly do justice. It is manifest from the maxim that a judicial decision can make ‘white the black and black the white, crooked the straight and straight the crook’. They believed that in the larger interest of the republic, there ought to be finality of litigation, and in a situation where even an innocent man was erroneously found guilty and sentenced to be hanged, he ought be hanged, provided that the court had jurisdiction, and it had observed the principles of natural justice.
Roman lawyers accepted the reality of there being honest and upright judges, intelligent judges, intelligent but inattentive, crooks and even idiotic judges. They believed that the fallibility of judicial decisions arising out of the whims and fancies, prejudices, even ill will and malice as inevitable. The concept of judicial recusal, ‘recusatio justicio’, was recognized even prior to Christ, Marcus Tullius Cicero sought the recusal of Julius Caesar in the trial of Plagiarius.
The law schools in our country only teach the abstract concepts of law as found in the constitution and statutes. The students are never told of the reality, the abberation, which is the actual law due to the whims and fancies, personal prejudices, upbringing, still worse, the discretion which a judge enjoys which is considered legitimate. I even find a reluctantance to accept this reality.
Let me speak from my experience. I happened to invite the wrath of Chief Justice Mohit Shah for raising certain issues of judicial probity. That was in the year 2010. He in revenge, sought to falsely implicate me in a impersonation case, when the records before him ex facie, beyond a shadow of a doubt, established that the allegations against me are fabricated and false. This shameful attempt to character assassinate me which is known to everyone in Bombay was used by Justice Rohinton Nariman to paint me dark and convict me for contempt of court for “taking his father’s name”, without even a notice to me, without hearing me, in my absence, without there even being a proceedings. Justice Nariman was angry because I had challenged his father’s practice in the Supreme Court, mistaking that to be a personal attack on Shri. Fali Nariman, while i did so only to bring to the public domain the damage caused to the institution of judiciary because of the kith and kin of judges practicing in the very same court, known among lawyers as “uncle judges syndrome” and other malaises.
Why Justice Nariman convicted me for contempt of court for merely mentioning his father’s name, while i indeed had only quoted him with respect? The action of Justice Nariman caused me great injury, for I was innocent and his order was a reflection of his anger. However, I maintain no ill will towards him, for judges too are humans, just as fallible as the rest of us, common mortals.
Adieu, Justice Nariman. God bless you
- September 29, 2023
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- September 29, 2023