A Memory for Forgetfulness: Some Thoughts on a Judicial Retirement

The retirement of a Supreme Court judge is marked by a few time-worn traditions: a farewell ceremony on the Supreme Court lawns, brief addresses by high constitutional functionaries, a rendition of the judge’s qualities (some evident through the course of their judgeship, others not so much), and curtain. It is over in an afternoon – harmless enough, as these things go.

The August 12 retirement of R.F. Nariman J has been characterised by something a little more. On Twitter, a senior counsel tells us that his was “an exemplary career in the law – as a jurist, a counsel and a judge.” On Moneylife, another senior counsel calls him “the perfect judge”, a “model professional with a high EQ”, and says that his legacy is “unmatched”. On BloombergQuint, a third senior counsel quotes Marc Antony and asks “whence comes such another?” Other encomiums of this kind can be found on the internet.

As a preliminary point, I want to say that, even accounting for the demands of the profession, such breathless hyperbole does our legal culture no favours. It is worth remembering – yet again – that judges of the Supreme Court (one of the three wings of the State) wield tremendous power, and the exercise of said power requires respectful – but critical – scrutiny, and not reams of purple prose. That apart, however, I believe that these encomiums are particularly inapposite in the case of this particular judicial retirement, as they seek to obscure a set of events – in which the judge in question was an active participant – that reflect the Supreme Court, as an institution, in particularly poor light. As we shall see, these pieces – and others – either ignore, or acknowledge but attempt to minimise, R.F. Nariman J’s role in those events.

Any honest reckoning of R.F. Nariman J’s legacy must, I believe, place at least two of these events at its centre. Why is this important? It is important because what we choose to tolerate, justify, or explain away now is very revealing of what we will continue to tolerate, justify, and explain away in the future. I thus offer up this critique not as a personal attack, but in the spirit of Hagai El-Ad’s anti-hagiographic assessment of the legacy of Aharon Barak: that in the struggle of memory against forgetting, there are some things that are vital to remember.

The NRC

It is by now tedious – yet important – to reiterate the Supreme Court’s role in ramming through the Assam National Register of Citizens [“NRC”]. The process started with the 2014 judgment in Assam Sanmilita Mahasangha vs Union of India. This judgment – authored by RF Nariman J “referred” a number of constitutional questions regarding amendments to the Citizenship Act to a Constitution Bench (one of them being whether immigration constitutes “external aggression” against the country) – and in the same breath, directed the immediate preparation of the National Register of Citizens (even as the question of its constitutionality had been referred to a larger bench in the same judgment). What followed is a matter of historical record: the Supreme Court repeatedly drove the State to complete the citizenship list as soon as possible, set hard deadlines, threw due process to the winds, took information in sealed covers, elevated the State Coordinator to some kind of privileged High Priest mediating between God (the Court) and the citizens, in secret conclaves, and essentially violated every basic principle underpinning the judicial function.

In history, there are innumerable instances of governments setting in place spirals of exclusion, violence, detention camps, and death, through the making of “Citizenship Lists”. To my knowledge, the series of orders passed between 2014 and 2019 is the only case where a constitutional court did so, and to an obsessive degree. And the results were indeed violent: more than fifty people took their own lives in fear of the consequences of being off the NRC list; Genocide Watch issued two warnings; and we continue to pay the cost in human suffering.

What do senior counsel have to say about this? One says, astonishingly, that the “bench passed crucial orders which led to the publication of the final NRC in July 2018″ – a bit like saying that Winston Churchill took “crucial decisions” regarding food distribution in West Bengal in 1942. In the Marc Antony piece, we are told that admittedly, that Assam Sanmilita was the “one blot” in an otherwise magnificent judicial career, but that RF Nariman J was likely “influenced” by his companion on the bench, CJI Gogoi. At this stage, RF Nariman J seems to have turned into Schrodinger’s Judge – both fiercely independent-minded and subject to “influence” by his companion judges, both unyielding and malleable, all at the same time. This will not do. The Marc Antony piece then goes on to note that “as these issues are still at large before the Constitution Bench of the Supreme Court and are still being debated politically, it may be best to say no more on the subject.” But this is an utter cop-out. Every order passed by the Supreme Court between 2014 and 2019 was a continuation of the 2014 judgment, and every order had a real-world impact. When assessing a judge’s legacy, you cannot cherry-pick the things that make him look good, and lightly pass over the rest, as if it were the shadow of a dream. These things happened.

But it seems that, reading the encomiums, they happened elsewhere, at another time, to someone else. The past is a foreign country. And it is this distance, this detachment, that we seem to achieve so easily, that I find of concern. Just as there was very little critique of the Court when these orders were being passed, there appears to be an equal unwillingess to acknowledge them as part of the judge’s record and his legacy. That indicates that if it happens again, we will only too easily look away again.

Re Matter of Great Public Importance Concerning the Independence of the Judiciary

Once again, reams have been written about the events that took place in May 2019, when allegations of sexual harassment were levelled against the Chief Justice. It is now almost universally accepted that the treatment of the complainant was unjustified at every level, and that a grave injustice was done. But injustice does not happen by an invisible hand: injustice is done, people do it. And in this case, at various points over the course of that week or so, no fewer than eight Supreme Court justices were involved in that injustice.

RF Nariman J’s role was in the second hearing, on the Monday following the Saturday. This was the hearing at which a lawyer showed up out of nowhere and claimed he had evidence that the Supreme Court Registry was being manipulated, ostensibly in order to “fix” the Chief Justice. The insinuation was that the accusations against the Chief Justice were politically motivated, a weapon of blackmail. It is a story that has repeated itself across time and place.

The Supreme Court hearing in which RF Nariman J was an active participant, gave credence to exactly this story. It completely derailed the actual accusations, turned the case from a sexual harassment case to an “independence of the judiciary case”, and by asking for an affidavit in a “sealed cover” and directing an investigation under an ex-Supreme Court judge, reinforced and entrenched exactly the kind of victim-blaming narrative that – it is well-documented by now – makes justice and accountability for sexual harassment an impossibility. And this is what is genuinely astonishing: that two days after an accusation of sexual harassment, someone shows up muttering darkly about conspiracies and threats to the nation, is so wild a plotline that fiction editors would reject it out of hand as too contrived. But instead of throwing it out and keeping the focus on the allegations themselves, the Supreme Court bench bought – or chose to buy into it – hook, line, and sinker. The Moneylife and Marc Antony pieces, unfortunately, equally choose to ignore it.

Two and a Half: Santosh Gupta

I found it a little surprising that none of the assessments of RF Nariman J’s legacy dealt with the judgment in Santosh Gupta, where RF Nariman J held that to the extent of repugnancy, the provisions of the SARFAESI overrode Section 140 of the Jammu and Kashmir Transfer of Property Act (as it then was), which had specific protections regarding certain kinds of property transfers. Opinion may vary about the correctness of Santosh Gupta, but there is little doubt that it had a huge impact with respect to issues of federalism and freedoms; its omission from legacy assessments is, I think, a little telling about how, even after 2019, Kashmir continues to occupy a collective black hole in our constitutional imaginations (something I have been frequently guilty of as well).

Conclusion

It is impossible not to be deeply moved on reading Marc Antony’s funeral speech for Julius Caesar. In his speech, Antony was inventing a legacy on the spot, transmuting Caesar’s dictatorial tendencies into humility and abnegation, and explaining away inconvenient facts. Antony knew what he was doing: after successfully exhorting the Plebs to violence and riot, he ends the scene by quietly saying to himself “now let it work. Mischief, thou art afoot.”

Let us therefore take the encomiums to RF Nariman J, framed through the lens of Marc Antony’s funeral speech, on their own terms. Soon after that funeral speech, the Roman Republic fell and Caesar’s dictatorial tendencies were solidified into an Empire. Perhaps the lesson there is that we should all take funeral – and farewell – speeches with an appropriate amount of salt.