‘The Working of a Judicial Mind’: Reflecting on a bar-bench exchange in the Naz SC hearing

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.

Event in Kolkata: The US Death Penalty on the World's Stage

The National University of Juridical Sciences (NUJS), Kolkata will host Susan Karamanian from the George Washington University law school on the 26th of February (from 4 to 6 pm in Room 006 of Ambedkar Bhavan). She is the Associate Dean for International and Comparative Legal Studies.

Her talk titled "The US Death Penalty on the World's Stage" will examine the effect of legal developments outside of the United States on the US death penalty. Three developments frame her remarks:

1. The decisions of the International Court of Justice concerning US obligations under the Vienna Convention on Consular Relations;

2. The application of domestic and international standards in the extradition process when the accused faces a death eligible offense in the United States; and

3. The use of foreign law and international norms to interpret the US Constitution's prohibition on cruel and unusual punishment.

She will argue that these developments establish a marked contrast between the United States and nearly the rest of the civilized world on the death penalty. And, remarkably, as she will also establish, these developments have had a profound effect in the United States on critical issues such as the type of individuals eligible for the death penalty and the legal process they are afforded."

For those interested, here is her profile from the GW website:

"Dean Karamanian joined the Law School in 2000, after a 14-year career at Locke Lord Bissell & Liddell, LLP in Dallas, Texas. While in private practice, Dean Karamanian represented foreign and domestic clients in a variety of commercial disputes. She also maintained an active pro bono docket, in which she represented inmates on Texas death row in their post-conviction appeals.

Dean Karamanian was vice-president of the American Society of International Law from 1996 to 1998, and has served in many leadership capacities in the society. She is a member of the board of the Center for American and International Law, the Texas Appleseed Foundation, the Washington Foreign Law Society, and the Friends of the Law Library of Congress.

Dean Karamanian is a member of the Council on Foreign Relations and the American Council on Germany and a fellow of the American Bar Foundation and the Texas Bar Foundation."

All are welcome to attend her talk. The campus of NUJS is located in Salt Lake, Sector III, very close to the Beleghata bypass. Key landmarks are the National Institute of Fashion Technology [NIFT] and the College of Engineering and Leather Technology.

Unfortunately, the current NUJS website is not fully functional. But this wikipedia entry should give you some idea of this institution.

India Sits Out the Cluster Munitions Agreement

On our 59th Republic Day, I thought I'd reflect, in my private capacity, on a disturbing trend concerning our country's refusal to participate or to curb its commitment to key humanitarian agreements. The latest example is the recently adopted international convention on cluster munitions. My friend, Priya Pillai, has written an excellent note for the American Society of International Law on the new agreement and she notes that India was among the notable absentees. It is unclear what the precise reasons for India's refusal are. I invite our readers, who may have insights or information, to comment on this development.

Terrorism and the International Criminal Court

In these uncertain times, the Chief Justice KG Balakrishnan reminds us that 'substantive due process is an essential part of our collective response to terrorism.' Don't think either of them will like the comparison, but Arundhati Roy makes a similar, if more eloquent, call: "Anti-terrorism laws are not meant for terrorists; they're for people that governments don't like. That's why they have a conviction rate of less than 2%...Terrorists like those who attacked Mumbai are hardly likely to be deterred by the prospect of being refused bail or being sentenced to death. It's what they want...We're standing at a fork in the road. One sign says Justice, the other Civil War. There's no third sign and there's no going back. Choose."

The reminders are timely, given that the government appears to have tabled an amendment to the Unlawful Activities Prevention Act today in Parliament. I am sure our bloggers will discuss the amendments as soon as further details emerge, including their impact on civil liberties, if any.

I am particularly interested in one small portion of the CJI's piece:
"Another suggestion that has been made in this regard is that of treating terrorist attacks as offences recognised under International Criminal Law, such as ‘crimes against humanity,’ which can then be tried before a supranational tribunal such as the International Criminal Court (ICC). However, the obvious practical problem with this suggestion is that prosecutions before this Court need to be initiated by the United Nations Security Council (UNSC) and the latter body may be reluctant to do so in instances of one-off terrorist attacks as opposed to continuing conflicts."

This, although true, is not the only course of action available. In this article, I aruged (with Neha Jain) that India has a strategic interest in signing up to the Rome Statute of the International Criminal Court:
"The ICC has jurisdiction over a case if either the suspects are nationals of a member state or if the crimes are committed on the territory of a member state. In a case like this one, because the crimes were committed on Indian soil, India could have referred the case to the ICC if it was its member at the time when the crimes are committed. It does not matter whether the foreign state whose nationals or residents are alleged to have committed the crimes is a member or not. The ICC can assume jurisdiction and require all member states to co-operate with the prosecution irrespective of the consent of the state whose nationals are being prosecuted. For instance, if the suspects were to seek refuge in a foreign state which is party to the statute, that state would be obliged to surrender the suspects to the ICC and assist in its investigative efforts. If the foreign state is not a member of the ICC, it will not have any obligation to co-operate with the ICC. But the international attention that an ICC trial will inevitably bring to the case may shame it into prosecuting or extraditing the suspects."

This blog has discussed the ICC previously, here and here.

Chidambaram on the legal issues arising out of the Indo-US nuclear deal

P. Chidambaram delivered the Convocation address at the 6th annual convocation of the NALSAR University of Hyderabad on July 19, 2008. Somewhat unusually, he chose to speak on a very topical issue - the legality of the civil nuclear deal that is the focus of so much attention in legal and political circles. An edited excerpt from that address appears as an op-ed piece in the Hindustan Times, and makes for interesting reading.