A tribute to Justice Khanna … and much more

I can’t speak for Justice Iyer, but here are some responses that came to my mind as I read the comments. For me, the piece was interesting because, like most stimulating personalised accounts, it told me as much about the author as about the subject. Justice Iyer refers, intriguingly, to his own role in the Emergency by expressly mentioning the circumstances that occurred before he, acting as vacation judge, delivered a temporary reprieve to Indira Gandhi. Many people consider that act to be a blot on his own judicial career, and his making even a reference to that act was interesting for me, particularly because he doesn’t really try to justify his own actions. The fact that he chosen to emphasise the actions of Justice Khanna in the ADM Jabalpur case reminded me of his own role in that series of events, and I can’t help wondering if he has regrets about his own role. There are other such phrases throughout the piece, where he seems to be adverting to events and personalities beyond Justice Khanna. It may well be that, thanks to an overactive imagination in this case, I am attributing things to Justice Iyer which he does not mean to suggest, but there are bits in the piece which seem suggestive of broader issues. For a sampling, see the following sentences:

“He ranks among the rare robed brethren of our age who could sacrifice high office for fine principle. … I found him free from personal ego and political ideologies. (This is interesting, because Justice Iyer has been unusually forthcoming about the ideological bases of his own judgments and one can construe this as a recognition of the problem of interposing one’s personal ideologies into judgments) … Essentially he was a democrat, open-minded and willing to listen, adjust and learn, and decide without Victorian vintage legalisms that are still regarded as hallmarks of learning. … Judges make history not by virtue of a long tenure or by pomp of office as Chief Justices. … His distinguished colleagues who blinked at the terror and horror of the Emergency were luminous jurists and became Chief Justices in due course, while the lone glorious dissenter sacrificed his future as Chief Justice.”

Perhaps one needs to know the history and politics of the Court (as well as the typical style of judgment writing) during the period that Justice Iyer was on the bench to be able to fully appreciate the thrust of these comments. To those in the know, these are telling pointers.

Suresh: your comment in particular reminded me that how one perceives a person’s views often depends on what one thinks of that person more generally. So, the fact that I approve of Justice Iyer’s views here does have something to do with the fact that I have sympathy for many of the causes that he espoused as a judge, and extra-judicially after his retirement. So, it is not surprising to me that his views are attacked, because people do not generally subscribe to his views on other matters. But, it seems to me that in paying tribute to Justice Khanna, Justice Iyer is not merely praising someone with whom he always agreed, but is trying to emphasise the judicial virtues which he thinks should be practiced by others. By recognising that Justice Khanna was “free from political ideologies” (a claim that the realist in me finds it hard to stomach), Justice Iyer may well be implicitly recognising a critique of his own judgments which were often perceived as the products of his political and spiritual ideologies. We can certainly debate whether those are good values or not, but it seems to me that Justice Iyer is perfectly entitled to express himself on what those virtues should be. Whether one finds the piece interesting or ‘useful’ is of course a purely subjective matter. It seems you didn’t, whereas I found much to chew on. That may well be a product of our own political views, tastes, base of information about – or interest in – the issues Justice Iyer is addressing, and other factors. As you say, perhaps we should leave it at that.

As to the last comment, I agree with you that the phrasing is problematic, and Justice Iyer’s suggestions are un-diplomatic to say the least. However, I took Justice Iyer to be referring to the general trends in arbitration cases in Delhi. Based on my own experience of some of these cases, there are troubling signs about the way retired judges of the Supreme Court are chosen for arbitrations. You and Vikram have asked what “advanced age” has to do with handing some of these disputes. To me, there is something at issue, especially when you consider the fact that some of these arbitrations involve complex legal issues and millions of rupees. However much medical science may have achieved advances in controlling the effects of ageing, there is only so much that someone in his late 80s can do. You suggest that arbitrations involve voluntary decisions by clients. To quite an extent, their choice in these matters is restricted by the real-world considerations that the big firms which typically engage in these arbitrations factor into such decisions. Those familiar with the way high-profile arbitrations are conducted will tell you that there is something to be concerned about. In the press, there have been some stories about former judges having given conflicting opinions on the same case to different parties, and being appointed arbitrators even though they had offered opinions to one of the parties earlier, and about other arbitrations which were conducted along questionable lines. One also hears speculation about sitting judges being worried about their prospects on the arbitration circuit upon their retirement from the Supreme Court, and some have speculated whether this affects the way they respond to requests by some of the lawyers who appear before them. I took Justice Iyer to be drawing attention to these troubling facts, and suggesting that judges should consider the kind of cases they agree to be arbitrators for, after their retirement from the Supreme Court. These concerns, if left unchecked, can have substantial implications for the regular functioning of the Supreme Court.

Vivek: I think I’ve referred to your point about ideology somewhat. I am not sure, however, that one can ever expect judges to abandon ideological stances in their judgments. When you mention your disdain for “strong” ideology, I take it that you have less objections to weaker forms creeping in, which I would argue is inevitable at some level. While I agree with you that we should be concerned about this phenomenon, and should worry about personal views being imposed through judgments, I am not sure imposing “strict textual interpretation” would solve the problems. Look, for instance, at the judges on the US Supreme Court who endorse the application of measures like textualism and originalism. Scalia, Roberts and Thomas are hardly the paragons of non-ideological judges.