Outside of the legal fraternity, it did not matter much that some judges of the Supreme Court were retiring in these past weeks. Within the legal fraternity, though, the retirement of Justice A.S. Oka led to a genuine outpouring of affection and emotion from across the aisles; no doubt made more stark by the near total absence of such reaction a few days prior in respect of Justice Trivedi.
Revisiting this juxtaposition, and reading several judgments authored by the two retiring Justices (limited, largely, to the field of criminal law and procedure), I could not escape thinking how Justices Oka and Trivedi are but two sides of the same coin of judicial discretion. When it came to matters of criminal law, the former wielded discretion to actively question exercise of state power, while the latter wielded judicial discretion to shield the state from questions; of course, subject to exceptions.
We might like one approach over another, sure, and there are no doubts about which approach this blog might prefer. But the unfortunate truth is that our preferences do not count for much as a legal principle. I say this, because at the end of the day, in our frustratingly polyvocal judicial system with its constitutional mandate of rights riddled with exceptions, there is no single correct approach to issues that these judges were dealing with. There is no fundamental principle, no categorical imperative in these parts.
This is our fickle rule of law, where consistency in outcomes is an honourable exception and even the simplest case appears to be cast in jeopardy. A few senior lawyers I know stress the jeopardy aspect by telling their clients that going to court, especially superior courts, is quite like playing high-stakes poker. Are they wrong? Administration of such a ‘rule of law’ where every scenario brooks an exception ultimately turns entirely upon how every singular actor wields their discretionary power to advance their personal notions of law, justice, and whatnot. One judge can view that discretionary power as being guided by a vision to uphold liberty, the other can view that same power as guided by a mission to secure law and order. Both views are correct, as much as you might not like one of them.
The problem is that both views should not coexist in all scenarios. Some situations do not justify two views. Some cases only have one correct view. And these truths should not change whether we are dealing with petty disputes between family members or dealing with dissidents who disagree with the State and its policies. In ours, however, they do. A jurisprudence of balance is not one in which the rule of law retains an inconvenient and unwavering consistency in times of war as in times of peace, but one where law must have the flexibility to bend and contort itself into whatever is the convenient shape for the day. Is this jurisprudence of convenient balance something to be scornful about? At times. But if you think about the high chance that any revisit of the status quo will make things intolerably and inexorably worse — by, say, stacking all the decks in favour of the State — then a constant tussle between impulses is a happy compromise to live with.
We can eulogise one judge and demonise another all we like, but no one person or their vision can straighten out the many contradictory impulses within the Indian legal system, all of which can be traced back to the Constitution itself. In the grand scheme of things, all that they manage is tilt the balance, by wielding their awesome power of judicial discretion. Depending on where you stand, that tilting of balance is something will either be something to be very grateful for, or extremely despondent about.