CJI Chandrachud roast

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A paralegal view of "justice"

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No wonder we cannot get "justice" in this country—we don't even know what it is.

Recently, CJI Chandrachud delivered a no-ball googly by decolonizing Lady Justice and revealing her as the all-seeing Bharat Mata carrying the Constitution. The executioner's sword in her hand, which represented "justice," was quite baffling to colonized people, who feared it as a weapon of subjugation and oppression. Justice, they thought, must be done through motherly compassion rather than with the sword.

Dand and nyaya

The Indian nation seemed utterly befuddled about whether "justice" means 'dand' or 'nyaya' when the government decided to rename the Indian Penal Code, 1860 (which is a code of 'dand' or penalties) to Bharatiya “Nyaya” Sanhita, 2023.

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Indians are witnesses to the fact that unpunished crimes give root to organized crime. Eventually, the cancer of corruption spreads through all organs of society. Thereafter, corruption becomes socially acceptable, and the only ones left complaining are those who can't afford the corruption or aren't getting a "cut" in it.

Indians expect those in power to protect the weak from the wicked—as notably, in Psalm 82 (2–4), the God of Israel rebukes the lords and judges of other nations for favoring the wicked and failing to protect the weak, saying: 

How long will you judge unjustly and show partiality to the wicked? Give justice to the weak and the fatherless; maintain the right of the afflicted and the destitute. Rescue the weak and the needy; deliver them from the hand of the wicked.

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The sword of justice

Protecting the weak from the wicked—the true essence of justice—is neither an intellectual exercise nor an act of charity toward the needy. It demands the exercise of power, symbolized by the sword, which must be without discrimination (as symbolized by the blindfold), and based upon the weight of the guilt (as represented by the scales).

For example, here's how the word "justice" is used in its real sense:

For righteousness in the land, the wicked must be brought to justice, and justice must be delivered to those who attempt to flee from the law. Justice must prevail even if the perpetrators are high and mighty and adept at evading the law. Justice must be served to the wicked who deserve punishment.

The meaning of justice stems from the concept of God's "just" nature—His requirement that sin cannot be forgiven without "just" penalty. We are, therefore, all destined to die due to our temptation to sin. No one is ultimately without sin, the penalty for which is death.

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The sword is thus symbolic of justice as it exacts the ultimate penalty of life. Similarly, the expression "eye for an eye, tooth for tooth" also represents justice but is not meant literally, and instead always meant monetary compensation.

Perverted meaning of justice and injustice

The meaning of "justice" has been perverted for political reasons to mean ‘equity’, or the opposite of "injustice"—which now encompasses any perceived social, economic, or political grievance. This has led to a situation where anyone claiming to be a victim of perceived oppression, historical or present, can demand "justice" through special privileges.

As an unknown American civil rights leader justified it, somewhat abstrusely:

The opposite of 'injustice' is not merely the absence of wrongdoing, but rather the active presence of fairness, equity, and righteous conduct in accordance with moral and legal principles that uphold the dignity and rights of all individuals.

Under this view, the perpetrators are not wicked individuals but society at large and history itself, and the victims are not weak individuals but underprivileged groups; they are not victims of present crimes but of historical events and past failures of justice.

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The American Civil Rights movement also popularized the phrases "Justice delayed is justice denied" and "No justice, no peace," which was eventually twisted to mean that groups with grievances—genuine or perceived—could riot and disturb the peace until their demands were met.

What is the Constitution?

Any constitution is a peacekeeping document by people trying to cobble together a country hastily in times of distress. Interestingly, the UK, Israel, New Zealand, and Canada do not have codified constitutions. In 1960, King Faisal declared the Quran as the constitution of Saudi Arabia.

The Indian Constitution had the worthy goal of bringing together a large array of ethnic, religious, social, and political forces under one state through promises of social and economic equity—ideas which were fashionable at the time in most parts of the world.

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The Constitution is a document of "social justice" which CJI Chandrachud has now placed in the hands of Bharat Mata as a manual for pacifying her complaining children. With her blindfold removed, she can now "see everyone equally" so as to treat them differently according to their special needs.

Fundamental rights made in America

When drafting the Constitution, India adopted the American template, establishing a federal structure of self-governing states under a Union government. India also incorporated a watered-down version of the American Bill of Rights, granting freedoms of speech, religion, occupation, life and liberty, along with due process of law. After enduring harsh ‘dand’ under British rule, these rights seemed quite appealing.

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The "fundamental rights" were meant to protect free American citizens from a tyrannical government infringing on their personal liberty and religious freedoms which were God-given. But in India's case, it has come to mean that the judiciary's primary role has shifted from delivering justice (dand) to protecting the accused from any undue or hasty punishment—particularly when the accused are wealthy and powerful.

Refusal to do justice

While the judiciary may believe that it upholds Constitutional rights and protects citizens against tyranny, in reality, the country suffers severely under the judiciary itself.

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Even if suffering parties obtain relief after years of struggle and legal expenses, the judiciary refuses to do justice by imposing heavy monetary costs (dand) on the guilty—unlike the common practice in other civilized nations. This naturally leads to abuse of the process of law and millions of false and unnecessary cases that now clog the system.

It makes little difference to the wealthy and powerful even if they are convicted or held in custody. They receive five-star treatment and carry on nefarious activities from within prisons.

Once the wicked gain wealth and power in any country, they inevitably control the levers of government, which influences the law enforcement agencies and the lower judiciary, and it becomes impossible to find foolproof evidence to convict them.

Absence of common law (sense)

Since every possible scenario cannot be covered under written "statutory law," justice must be extrapolated from a common value system, such as Biblical commandments or Islamic law. Unfortunately, in India, the underlying "common law" is relativistic—people don't think in terms of right and wrong; they think in terms of who's worse. If others steal, why shouldn't I?

Since we lack an understanding of English common law (and its underlying religious and philosophical foundations), even when we adopt their laws—for example, business and consumer protection laws—we have no shared agreement on their meaning. Instead, we endlessly debate the interpretation of every word and punctuation mark.

The Supreme Court has to write "landmark judgments" explaining elementary concepts such as cheating requires ill intent (something known before courts existed) or whether a minority shareholder can be removed from the board (something known to the East India Company). In this way, Indian jurists are trying to evolve a body of "common law" from scratch. They are still writing dissertations on Newtonian law while the civilized world has moved on to quantum law.

Mockery of justice

The curious case of CM Kejriwal is a perfect illustration. When he failed to appear after multiple summons, authorities were at a loss, not knowing what to do. He was nearly granted bail by a Lady Justice (curiously named Nyaya Bindu) quoting the American Founding Father, Benjamin Franklin (1702–1790). Then CM Kejriwal insisted on running the Delhi government from jail—a situation that stumped legal minds, who were relieved to find that the old British jail manual still forbade inmates from meeting too many visitors. The situation became so desperate that they eventually released him on bail with the condition that he cease all government work.

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CM Kejriwal maintains his innocence and has proclaimed himself the most honest person alive, and dared anyone to prove otherwise in an Indian court of law—openly challenging the judiciary's intelligence. One wonders how long it will take our justices to "establish law" against such mockery of justice.

Justice in Benjamin Franklin's world

When Benjamin Franklin famously said in 1785 that "it is better that a hundred guilty persons should escape than that one innocent person should suffer," he didn't actually intend to set free hundreds of guilty people. Also, he was empathizing with the suffering of actual innocent persons. In India, thousands of innocent people suffer at the hands of the wicked, and no one is brought to real justice.

It may be true that the Indian judiciary is handicapped by lack of resources in a third-world country. But the same was true in the time of Benjamin Franklin also. Yet this did not result in a dearth of justice. On the contrary, justice was so swift and prevalent that it prompted Franklin to worry about innocent people facing hasty judgment based on mere suspicion.

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Furthermore, ordinary people in Benjamin Franklin's deeply puritanical towns were quite honorable by the standards of their day, so it became a legal maxim that one must be presumed "innocent until proven guilty." The guilty were then hanged in the town square, with the public cheering for justice. The last public hanging in America occurred in 1936, when Rainey Bethea was convicted of rape and executed in Kentucky, drawing over 20,000 spectators.

Alternative dispute resolution according to Ben Franklin

Real gentlemen resorted to delivering justice by drawing guns, and duels were commonplace between political opponents, including congressmen, senators, and vice presidents, and even President Andrew Jackson.

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Lawyers weren't far behind—the most notorious example occurred in 1817 when Thomas Hart Benton and Charles Lucas, two attorneys opposing each other in court, engaged in not one but two duels on the infamous Bloody Island. Their first encounter, sparked by Lucas questioning Benton's voting rights and Benton calling Lucas a "puppy," left Lucas shot in the throat and Benton wounded in the leg. Their second duel proved fatal. When Lucas complained that the first duel's 30-foot distance was unfair due to Benton's superior marksmanship, Benton challenged him again and killed him at just nine feet. A decade later, in 1828, Georgia's Attorney General George Crawford killed state legislator Thomas Burnside in a duel over published defamation of Crawford's father.

Trends in Indian justice

Thus, context is important—lofty principles like "Bail is the rule, jail is the exception" don't apply to India, a den of thieves, Guantanamo Bay prisoners, Nazis at Nuremberg, or Nazi fugitives hunted by Israeli agents. Justice requires will; there is always a way. The battle for justice is fought with the weapons one has, not with the ones one wishes they had.

Such misunderstanding is not uniquely an Indian problem—it occurs wherever modern Western laws are imposed on cultures not rooted in English common law's view of individuals as free, moral agents. In much of the world, people think tribally rather than morally, defending their own even when wrong. They seek “social justice” over freedom, preferring to be taken care of.

Our value system is still based on honor and retribution, not on humility and forgiveness. People will readily get outraged and escalate minor conflicts, then use any means available, including abusing the legal process, to harm their adversaries. We are experts in finding loopholes in every law, and enforcers of the law are no more virtuous than the ones they are pursuing.

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In the absence of a uniform 'dand' regime, new innovations have sprung up, such as "bulldozer" and "encounter" justice. Needless to say, such methods are entirely unconstitutional, but the judiciary is once again scratching its collective head. They can no more convict CM Yogi for bulldozing than they can hold CM Didi culpable for the appalling interference in the R.G. Kar Nirbhaya case.

Let’s not over-emphasize justice

Justice is an ethereal concept that is never perfectly attained in practice. Every attempt at justice creates unintended consequences and sometimes new victims. In the real world, mercy, forgiveness, and maintaining peace are just as vital as pursuing justice. Justice is a matter of statecraft and not of individual or collective retribution. Ultimately, perfect justice rests in the hands of a just God.  

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In a democratic country like India, the people serve as the ultimate judge and jury. They have the ultimate authority to convict or pardon and get regular opportunities at the EVM machine to make the country more “just” according to their collective understanding of “justice”.

Cries of "We want justice" still echo through the streets of Kolkata today, and years have passed since the uproar in the SSR case. The media which led the public outcry at one time has mostly fallen silent.

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The people of India have accepted that the Constitution is more concerned with correcting prior "injustice" rather than delivering present-day justice. So, some have picked up the sword themselves—while CJI Chandrachud, by throwing away the sword and picking up the Constitution, has declared his candidacy for the Chief Librarian of India.