The Elements of Subjectivity in Judicial decisions
Though man
craves for objectivity, in real life one finds a zillion examples of
subjectivity and judicial system is no exception. This is precisely why one
finds markedly different interpretations of same section of the Indian Penal
Code. Take the case of section 377 which talks about criminalization of sex
between same sex people as well as sex between human being and other animals.
In Koushal v Naz foundation case, a two-judge bench of the Supreme Court
overturned a 2009 decision of the Delhi High Court decriminalizing sodomy by
section 377 of the Indian Penal Code. In doing so, it has recriminalized every
Indian who has ever had oral or anal sex [irrespective of the gender of the
person they had it with, and irrespective of consent].
The section
377 has been interpreted differently by the Delhi High Court and now by the
Supreme Court with diametrically opposite decision. When the Delhi High Court
decision came in 2009 it was hailed as a step forward and now the Supreme Court
decision is being roundly criticized by all progressive sections of our
society. Event the ultra-right forces have welcomed the decision in a muted
manner. While one must hail this negative achievement of the progressive
forces, one must try to understand as to why same section gets totally
different interpretation.
This is
where the subjectivity comes into picture. We tend to forget that the judges
are human beings too, with likes and dislikes. All they do it to control them
to the maximum possible extent. In most of the cases, they succeed. That
however does not mean that they succeed all the time. Cases like interpretation
of the section 377 bring to surface the subjectivity, a fundamental reality of judicial
system.
This is not
new and specific to India. The famous jurists from UK Lord Scrutton wrote:
‘Where are your impartial Judges? They all move in the same circle as the
employers, and they are all educated and nursed in the same ideas as the employers.
How can a labour or a trade unionist get
impartial justice? It is very difficult sometimes to be sure that you have put
yourself into a thoroughly impartial position between two disputants, one of
your own class and one not of your class’.
Similarly
former prime minister of UK Mr. Winston Churchill wrote:’ The Courts hold
justly a high, and I think, unequalled pre-eminence in the respect of the world
in criminal cases, and in civil cases, between man and man. No doubt, they
deserve and command the respect and admiration of all classes of the community,
but where class issues are involved, it is impossible to pretend that the
courts command the same degree of general confidence. On the contrary, they do
not, and a very large number of our people have been led to the opinion that
they are, unconsciously, no doubt, biased.’
These two
observations from scholars hailing from advanced democracy like UK should seal
the debate about the total impartiality of the judiciary. And it should also
embolden us to discuss the class character of Indian judiciary.
Even in
India, there have been many respected judges who have often expressed opinions
about the class bias of our judiciary. Former judge of the Supreme Court O.
Chinappa Reddy often said that every situation has a class character and judge
must understand this. Then we have highly respected Justice V R Krishna Iyer
who also commented about the class character of our judicial system. In a
recent article he commented on this issue. He wrote: ‘Capitalism and socialism
are fundamentally based on the haves and have-nots. The working class is often
exploited by the capitalist class when it nominates the executive, which more
often than not, represents the richer class.’ He made some eye-opening remarks.
He wrote: ‘Even with adult franchise, the purchase by the richer classes of
members of the legislature remains a possibility. Naturally, the class bias
comes into play even in the selection of judges. Even the judiciary and
jurisprudence they enforce have a class character.’
Only when we
take into account these highly relevant observations, we can dispassionately
discuss the subjectivity in judicial decisions. While comparing the verdict
given by the Delhi High Court and the Supreme Court on section 377, one can
conclude that the Delhi High Court took a progressive position but the Supreme
Court relied on nebulous ‘Indian culture’. Everybody knows that there are
enough cases in Indian culture which could be cited to support same sex
relationships and alliances. But the top judiciary decided to pick only that
part which supported its position.
Quite often
the ideological position of judges is reflected in the judgments given by them.
In the 1950s, Nehru’s government introduced the Zamindari Abolition Act, 1951.
Though it was passed by the Parliament, the landlords went to Court and
requested for the annulment of this act as it was infringing upon the
fundamental right to private property. The Judiciary took very legalistic view
and struck down this act which was meant to take over excess lands from landlords
and give it to poor farmers who have been toiling on the same land for
generations without property rights. This judicial verdict alerted Nehru, a
hard-core socialist. He was foxed as this decision would mean no socialism in
India. He came out with a novel solution. He added XI schedule to the
Constitution and provided that laws made under this schedule are not subject to
the judicial review. With this schedule the path to progressive laws became
clear. Similar situation came in July 1969 when Indira Gnadhi nationalized 14
private banks. As expected, the owners went to the Court and as expected, the
Judiciary struck down this decision. Indira Gandhi promptly put this amendment
in XI schedule and moved ahead with the nationalization.
These
instances show that judges are human beings with their own likes and dislikes.
This is precisely why they should not be unnecessarily sensitive towards
criticism. One can close this discussion with a quote from the legendary
American judge Frankfurter. He said: ‘Judges as persons, or courts as
institutions, are entitled to no greater immunity from criticism than other
persons or institutions. Just because the holders of judicial office are
identified with the interests of justice they may forget their common human
frailties and fallibilities.’
Prof. Avinash Kolhe
Asst. Professor in Political Science at D G
Ruparel College, Mumbai
