The ordinary citizens, particularly the informed section, are proud that we have one of the world's best and most comprehensive constitutions. Our constitution has a specific chapter stating in great elaboration the inalienable rights such as equality, freedom of speech and expression, life and personal liberty, faith and conscience, etc. Under Article 32, when these fundamental rights are infringed, a citizen as a matter of right is entitled to approach the Supreme Court directly without recourse to any other Court, though otherwise, the law is that one shall invoke the jurisdiction of the lowest court of competent jurisdiction. The familiar people, even law students, budding lawyers, law professors and academicians, firmly believe that the real courts function according to constitutional and other legal principles. They think that that is the law. But seasoned lawyers and litigants know from experience that the constitution, the enacted rules and the settled legal regulations are mere myths.
The fundamental law is what lawyers and judges do and practice in the name of the law. The writ jurisdiction is asserted to be an entirely discretionary one. Article 136 of the constitution expressly states that "the Supreme Court may in its discretion grant special leave to appeal..". The equitable remedies like injunction, commonly known as 'stay', are all discretionary. We follow the common law. Article 372 of the constitution says so. The common law has its foundations in classical Roman law. But the classical Roman lawyers generally considered discretion as contrary to law, anti-law. Though, jurists like Aristotle, Gaius, et al. favoured conferring discretionary power in furtherance of epikeia, Equitas, equity.
In our law schools, the myth is taught, the utopian scenario where the judges decide cases according to the constitution, statutes, and settled legal principles. They are not told that the abstract concepts in the constitution, statutes, etc., are not the fundamental law. The natural law is what lawyers and judges apply in deciding an actual case. It is manifest from the maxim that a judicial decision can make 'white the black and black the white, crooked the straight and straight the crook'. The roman lawyers, particularly Ulpian Cicero, realised this significant limitation of humans as judges and believed that no judge can ever assuredly do justice. They thought that there ought to be the finality of litigation in the more significant interest of the republic. In a situation where even an innocent man was erroneously found guilty and sentenced to be hanged, he ought to be suspended, provided that the court had jurisdiction and observed the principles of natural justice.
Roman lawyers accepted the reality of being honest and upright judges, intelligent judges, intelligent but inattentive, crooks and even idiotic judges. They believed that the fallibility of judicial decisions arising out of the whims and fancies, prejudices, even ill will and malice as inevitable. The concept of judicial recusal, 'recusatio justicio', was recognised even before Christ; Marcus Tullius Cicero sought the recusal of Julius Caesar in the trial of Plagiarius.
The law schools in our country only teach the abstract concepts of law as found in the constitution and statutes. The students are never told of the reality, the aberration, which is the fundamental law due to the whims and fancies, personal prejudices, and upbringing—still, the discretion that a judge enjoys, which is considered legitimate. I even find a reluctance to accept this reality.
Let me speak from my experience. I happened to invite the wrath of Chief Justice Mohit Shah for raising specific issues of judicial integrity. That was in the year 2010. He, in revenge, sought to falsely implicate me in an impersonation case when the records before him ex facie, beyond a shadow of a doubt, established that the allegations against me are fabricated and false. This shameful attempt to tarnish me, which is known to everyone in Bombay, was used by Justice Rohinton Nariman to paint me dark and convict me for contempt of court for "taking his father's name", without even a notice to me, without hearing me, in my absence, without there even being proceedings. Justice Nariman was angry because I had challenged his father's practice in the Supreme Court, mistaking that to be a personal attack on Shri. Fali Nariman, while I did so only to bring to the public domain the damage caused to the institution of the judiciary because of the kith and kin of judges practising in the same court, known among lawyers as "uncle judges syndrome" and other malaises.
Why Justice Nariman convicted me for contempt of court for merely mentioning his father's name, while I indeed had only quoted him with respect? The action of Justice Nariman caused me a great injury, for I was innocent, and his order was a reflection of his anger. However, I maintain no ill will towards him, for judges, are humans, just as fallible as the rest of us, common mortals.
Justice Nariman is retiring today. Adieu, Justice Nariman, God bless you.
(The author is the president of National Lawyers Campaign for Judicial Transparency and Reforms. Views are personal only)