Barack Obama, when he was the US president, made a public statement on appointment of judges to the US Supreme Court: “I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book; it is also about how our laws affect the daily realities of people’s lives.” He said that the “quality of empathy” is “an essential ingredient for arriving at just decisions”.
The opinion ignited serious intellectual discourse. A few asked whether the President was pleading for a populist judiciary with moral rhetoric and whether constitutional interpretation would become an extended form of politics. However, many others tried to perceive a symbiotic relation between compassion and the court in certain cases.
The connection between empathy and the law has all-time relevance. The court is no longer an unfamiliar area or a dangerous zone. The common man wants to see it as a public place where human emotions do have a role. Ethical responsiveness is a human quality and therefore also a judicial virtue. As American philosopher Martha C Nussbaum explained, “Without its charity, reason is cold and cruel.” There could be place for sentiments in court which need not necessarily contradict the law. Rule of law could also be the rule of love in appropriate situations. For Arthur Schopenhauer, compassion is the very foundation of morality. While explaining “the unbearable lightness of being”, Milan Kundera could find that “there is nothing heavier than compassion”.
Compassion is not alien to Indian courts or to the Constitution of the country.
A closer reading of Article 51A (g) would signify this value in the fundamental law. While speaking about environmental protection, the Constitution motivates us “to have compassion for living creatures”.
In an ingenious judgment, Justice Bhagwati redefined the idea of locus standi (right to bring legal action) and said that a member of the public could approach the court on behalf of the helpless, disabled and the backward who are denied access to justice.
(S P Gupta case, 1981).
The Public Interest Litigation (PIL) movement in the country had multiple dimensions. It encompassed areas ranging from civil liberties to social justice. Anti-corruption struggles often had their litigative versions, which however, were sometimes criticised for partisanship or lack of good faith. Very often, deterrence, aggression and hatred defined the social action litigations in the country. Reinstalling compassion at the heart of the PIL movement in India could be an important idea today.
In a few small villages in the northern part of Kerala, as a result of aerial spraying of the toxic pesticide endosulfan, thousands including newborns were fatally affected. Life became more difficult than death. It was an inter-generational calamity. Politicians, media and social activists showed solidarity with the victims. Struggle on the street became the order of the day.
Those struggles continued for almost a couple of decades. Ultimately, it took a single page for the top court to grant a substantial compensation of `5 lakh to the victims, after a writ petition was filed by the Democratic Youth Federation of India. It was a gesture of compassion. The court, in that case had to travel beyond the conventional limits of judicial review. It needed activists and humanists on the Bench. Such judicial gestures are, however, relatively rare in recent times. One finds anger, anguish and exasperation on the Bench, not empathy. These days, empathy has a shrinking space in the judiciary.
But the social action litigation in India is criticised as a device that damaged the very institution of judiciary, especially in the post-Emergency phase (See Anuj Bhuwania, Courting the People, 2017). Of late, the PIL, as an institution, has lost its initial charm and modesty. It has often become publicity based or ill motivated. Historically, however, one notices that the PIL has been the most formidable litigative device that has humanised the Indian constitutional courts.
In a series of M C Mehta cases, the court backed a cleaner environment. Prof. Upendra Baxi famously said that “the Supreme Court of India was ‘Krishnaiyerised’ to become the Supreme Court for Indians” (Tariq Khan, Bar & Bench). Krishna Iyer ruled consistently against handcuffing (Prem Shankar Shukla case, 1980), solitary confinement (Sunil Batra Case, 1979) and imposition of onerous conditions for grant of bail (Gudikanti Narasimhulu case, 1977).
The top court rescued the blinded undertrial prisoners from Bihar (Hussainara Khatoon, 1979). In Samatha case (1997), the court empathised with the tribals and said that they have a fundamental right to land. In the Asiad case (1982), the child labourers were given the solace of judicial activism. The court ordered compensation for illegal imprisonment in Rudul Shah case (1983), and in Nilabati Behera case (1993) the ground for damages was custodial death.
As time passes, we no longer have much of the socialist jurisprudence. The courts, like other institutions, follow the rules of a globalised world. A juridical elitism is slowly taking place. The concern however is not only about the erosion of socialist values or egalitarianism but also about a process that invisibly annihilates humanism on the Bench. The judges of the higher courts need to regain their power to weep. We need another brand of advocacy in human tragedies. There are instances where the court needs to be simultaneously sympathetic and judicious. The Constitution has its emotions as well.