This post focuses upon a reported exchange in the Supreme Court hearing of the Naz case, between Chief Justice Balakrishnan and the lawyers supporting the High Court judgment in Naz Foundation. The specific issue involved the legitimacy of referring to foreign and international experiences while deciding controversial questions of domestic constitutional law. As Mr. Venkatesan recounts it, when counsel for ‘Voices against 377’ relied on the fact that other countries had decriminalized same sex intercourse, the Chief Justice apparently remarked that “our civilization is different from European civilization.” Later in the post, I will explain why I found this comment somewhat strange. For now, though, a brief diversion.

I am currently reading the absorbing new book by Justice Albie Sachs of the South African Constitutional Court, ‘The Strange Alchemy of Life and the Law.’ Justice Sachs is considered one of the most extraordinary jurists of our age, and this book provides ample evidence for why that claim is so often made. Part-autobiography, the book is an insightful self-reflection on ‘the working of the judicial mind’ (which is the title of one of the chapters) and is an interesting account, drawing at times from extracts of landmark judgments delivered by the South African Constitutional Court. Scholars of courts and judges have long lamented that judges do not write more about the processes they adopt to make the often difficult decisions they have to hand down. This book seeks to fill that vacuum, and provides fascinating (but not sensational) insights into the art of adjudication. Although the book deals primarily with South African issues, readers in India will be struck by the impact that India’s founding leaders and its constitutional experience had on South African legal personalities in general, and on Justice Sachs in particular.

Returning to the thrust of this post, a particular passage in the book is relevant to the bar-bench exchange in the Supreme Court hearing on the Naz case. Justice Sachs mentions how, during oral argument for a controversial case, he posed a question to counsel, which was picked up by the press and became a sensational issue as it was taken to reflect the judge’s thinking on the issue. In the recent past, we’ve seen similar instances in India, where stray statements by Supreme Court judges have given rise to controversy. Taking a position similar to that advanced by Indian Supreme Court judges, Justice Sachs has this to say on the issue (at page 32):

The exchange with counsel is part of the rough and tumble of legal life, and an important way of getting to legal truth. But, in the end, we judges are accountable through the judgments we deliver, and not the questions we ask.

The reason I was struck by Chief Justice Balakrishnan’s reported comment is because it appears to conflict with positions he has taken in extra-judicial speeches that were delivered very recently (and are available on the website of the Supreme Court). These speeches were delivered in Cairo (March 2009) and Qatar (May 2009) respectively. In both texts, the Chief Justice addresses the debate over the use of foreign and international law in constitutional adjudication, a contentious issue that has invited commentary from judges and scholars in several jurisdictions in recent years. Since the analysis in both speeches is essentially the same, I will refer to the Cairo speech. After providing a succinct and fairly thorough analysis of the debate over the use of foreign decisions, Chief Justice Balakrishnan remarked (at pages 34-35):

It is disappointing to learn of the extent of distrust of foreign precedents amongst some prominent members of the legal community in the U.S.A. … Judges in India routinely cite precedents from U.S. Courts besides other foreign jurisdictions and international law. … It is true that the socio-political conditions prevailing in different jurisdictions will pose legal problems particular to them, but there is no reason why constitutional courts in these countries should not benefit from each other’s experiences in tackling them. ….

Chief Justice Balakrishnan then went on to document the role of Indian jurists in evolving the ‘Bangalore Principles’ which exhort judges to use foreign and international law to advance the cause of international human rights. He then concluded with these words:

The growth of constitutionalism will be better served with less resistance to the increasingly important discourse of comparative constitutional law. It is through this framework of recognizing a growing international consensus on the understanding of individual as well as group rights that judges in constitutional courts can lead the way in advancing socio-political reforms in their respective countries.

This statement shows that Chief Justice Balakrishnan adheres to a remarkably cosmopolitan and progressive approach towards the task of constitutional interpretation. But how does one square the view expressed by the Chief Justice in open court (which displays a tendency towards legal parochialism and knee-jerk xenophobia) and the analysis he offered in these extra-judicial speeches?

Justice Sachs’ quoted statement from his new book may help us resolve the conundrum. Although Chief Justice Balakrishnan is yet to address the issue of using foreign and/or international law in his judgments (I mean the broad issue generally, rather than whether a particular foreign constitutional doctrine/concept – such as strict scrutiny – is relevant for India), his speeches may give us some hints about his actual thoughts on the issue. His statement in court should perhaps be understood as, to use Justice Sachs’ phrase, “a way of getting to legal truth” and not as a reflection of his own thinking on the issue. In that sense it is akin to the questions a moot court judge may lob at a law student, to test her grasp of, and confidence in, an expressed argument.

Much has been made of the way the Delhi High Court used foreign and international law to justify its central holding. If the Naz case does go forward in the Supreme Court, this issue will come up for discussion and debate once again. It will be interesting to see if Chief Justice Balakrishnan revises his view on the use of foreign decisions in the context of this particular case.