India's Courts Have Forsaken Those Who Are Defenceless Against the Might of the State

I express my anguish knowing full well that I am a nobody and do not count in the scheme of the State.

‘Let the jury consider their verdict,’ the king said, for about the twentieth time that day.

‘No, no!’ said the Queen. Sentence first, verdict afterwards.’

‘ Stuff and nonsense!’ said Alice loudly.

‘The idea of having the sentence first!’

‘Hold your tongue!’ said the Queen, turning purple.

‘I won’t! said Alice.

‘Off with her head!’ the Queen shouted at the top of her voice. Nobody moved.

‘Who cares for you? said Alice.

‘You ‘re nothing but a pack of cards!’

Before the ever- and over-enthusiastic omnipotent State thinks of dragging me from Patna to court on charges of contempt – and the court actually contemplates what to do with me – I should clarify that the above exchange is an extract from chapter XII of Lewis Carrol’s Alice in Wonderland, where a knave is being tried for stealing a plate of tarts.

This article comes with a DISCLAIMER that any resemblance of it to the present times is purely incidental, neither of my making or intent. However, it would be good to recall that in the story Alice tries to find sanity and meaning in a trial, which is supposedly a quest for truth, but soon realises that in a world without meaning, everything including a court of justice is a sham. Whether this is a universal and continuous truth like great literature, or not, could be a subject of an interesting debate and I personally have no opinion on it.

While on search for meanings, I accidentally discovered David McRaney, a psychologist who, in The Surprising Psychology of How to Handle Haters, says that according to self-perception theory we are both observers and narrators of our own experience: We see ourselves do something and unable to pin down our motive, we try  to make sense of it by constructing a plausible story. We then form beliefs about ourselves on observing our actions as narrated by that story, which of course is based on our existing beliefs in the first place. He says that it is self- delusion that we do nice things to people we like and bad things to those we dislike. On the contrary, what he calls the Benjamin Franklin Effect is that we grow to like people for whom we do nice things and dislike those to whom we are unkind. He advises that one must be wary of the roles you play and acts you put on because you tend to fulfil the labels you accept.

Even Gandhi ji had said our thoughts become our words, our words become our actions, our actions become our character, our character becomes our destiny.

According to this theory, in order to reinforce our faith in any system, founded on rule of law, we must firstly do good and just things without fear or pressure, which then will change our thought process and help us evolve into better human beings.

I must confess, of late, I have started to exist in a perpetual state of confusion, like Alice. Even while my own values remain unshaken, I find great institutions, including the judiciary, which stood like beacons, dimming their lights for reasons not comprehensible to me. I seem to be living a life of a protagonist of a surreal story who does not know whether an event had actually happened or was a figment of imagination.

For example, had the decisions of the Supreme Court on aspects of personal liberty and the urgency to safeguard them not been reported in law books I would have thought they had never happened. I would have thought that I had dreamt that the Supreme Court in 1962, when our country was asserting itself as a democracy, said (in its immaturity of adolescence), in State of Rajasthan v. Mst Vidhyavati  that, “The immunity of the Crown in the United Kingdom, was based on the old feudalistic notions of Justice, namely, that the King was incapable of doing a wrong, and, therefore, of authorising or instigating one, and that he could not be sued in his own courts. In India, ever since the time of the East India Company, the sovereign has been held liable to be sued in tort or in contract, and the Common Law immunity never operated in India.”

Or in 1990, when the Supreme Court was in its 40s, while dealing with the alleged illegal detention of a legislator – Bhim Singh  – in the State of Jammu and Kashmir as it then was, had castigated the police for having acted in a high handed manner and reminded them that they should not stoop to bizarre acts of lawlessness and that custodians of law and order should not become depredators of civil liberties.

I grew up knowing that a court of law was to rule only in this manner, and none other. This was my truth and was sacred to me, so it is very difficult for me to reconcile with the attitude of the courts of 2020, i.e. after 70 years of freedom from servility. Given the history of  courts which always acted as the ultimate protector of the defenceless pitted against the might of the State, I naturally expected the institution to be wiser with age, and wished it to evolve principles which brought us closer to the goals set out in our worthy constitution.

I express my anguish knowing full well that I am a nobody and do not count in the scheme of the State but as Maria Popova said, “When people try to tell you who you are, don’t believe them. You are the custodian of your own integrity, and the assumptions made by those that misunderstand who you are and what you stand for reveal a great deal about them and absolutely nothing about you.”

In the end, let me quote the famous American modern writer Kurt Vonnegut, who said, “We are what we pretend to be, so we must be careful about what we pretend to be.” In my mind, there is a lesson in it for everyone in this loaded sentence. And maybe it also means that if wrong choices pretend to be judges, they must be careful to pretend they are judges or else they will be mistaken for elected representatives of a populist State.

Anjana Prakash is a former judge of the Patna high court.