On The Proof of Guilt blog, Abhinav Sekhri has written an excellent essay called “Two Sides of the Same Coin.” Sekhri’s post was triggered by the contrasting reactions to the retirement of Supreme Court Justices Trivedi and Oka. To the naked eye, these two judges couldn’t have been more different from each other, and this difference was particularly stark in the domain of personal liberty, criminal law, and the Constitution. As Sekhri notes, however, a close reading of the judgments and orders authored by both judges reveals that they were two sides of the same coin, in the sense that they both epitomised the judicial discretion and the “jurisprudence of balance” that has come to characterise the Indian legal system, including at the Supreme Court level.
While the two Justices came down on opposite sides in determining the “balance” between State interests and personal liberty, the point is that this still remained a jurisprudence of convenience (sometimes a happy convenience and sometimes an unhappy convenience), rather than one “in which the rule of law retains an inconvenient and unwavering consistency.” Although Sekhri does not make this further point, it is also perhaps telling that the criticism of one Justice and praise of the other has tended to focus on how niggardly or how liberal they were in the grant of bail under “special laws” such as the UAPA and the PMLA, and not about the doctrinal or jurisprudential direction that they gave to these statutes outside of individual cases – because there was none. So beyond praise and criticism, it behooves us to think more deeply about a legal system that has come to be so dependent, at a case by case level, on the individual proclivities of judges, none of whom seem to be particularly keen on developing the law so as to restrain judicial discretion from being so decisive, especially in cases involving personal liberty.
Sekhri’s piece has prompted me to explore more deeply my own unease with the hagiography of retiring Justices. There are times when such hagiography can be more easily dismissed as self-serving or cynical, especially when the Justice has often taken the side of power in contentious cases. It is obviously more difficult to dismiss it, however, when it comes from what I have recently referred to as “the liberal bar“: that is, from legal practitioners who are, ostensibly, committed to the cause of individual liberty, and to contesting State power on the terrain of constitutionalism.
It strikes me, however, that a commitment to liberty and freedom can take two forms. This commitment can be universalist – that is, extended to all people and to all groups, regardless of any markers of identity. Alternatively, this commitment can, itself, be founded on the logic of friend/enemy, insider/outsider, and included/excluded. You can thus retain your commitment to liberty and freedom, but argue – as indeed, historically, the liberal tradition has often argued – that there are individuals and groups who, for certain reasons (always eloquently justified) simply fall outside its pale.
Borrowing from established tradition, let’s call the two sides of the dividing line the “core” and the “periphery.” The “periphery” is the state of exception, where the principles and values of freedom, liberty, and the rule of law, which – under the liberal tradition – are meant to govern the “core”, simply don’t apply (or apply in an attenuated fashion). It is my contention that in the Indian liberal constitutional tradition, two sets of “peripheries” occur with historical frequency: the status of Kashmir and the rights of non-citizens (immigrants, refugees etc.) So, for example, you have the same judge extolling the liberal principle of asymmetric federalism on the one hand, while refusing to extend it to Jammu and Kashmir on the other; or the same judge writing strong judgments on the freedom of expression on the one hand, while also driving the immeasurably cruel process of the National Register of Citizens on the other.
With this in mind, let us flag two recent instances of the Supreme Court on Kashmir and on the rights of non-citizens. In February 2023, the Supreme Court handed down a judgment upholding the fresh delimitation of boundaries in Jammu and Kashmir under the J&K Reorganisation Act (which itself was under challenge at the time). This judgment has been extensively critiqued on this blog, here. I need not repeat the critique in full, but only need note that this judgment not only deepened and entrenched the fait accompli that had been created by the effective abrogation of Article 370 in 2019 (which was still pending judgment), but also went out of its way to opine (in favour of the State) on issues that were expressly pending in that case, including the question of whether the Union was competent to degrade a state into a union territory. Indeed, that question was ultimately evaded by the Article 370 bench, which means that the only partial precedent on the point is the Delimitation Judgment, which – without the issue even being properly contested before it – saw fit to opine in favour of the State.
And secondly, we have the hearing of the Supreme Court in February 2025, where the Supreme Court pulled up the State for failing to deport individuals, and then egged it on to do so post haste. As I have noted before in my post on the legacy of Justice R.F. Nariman (see above), the issue of immigrants/stateless people is one where the Supreme Court frequently outdoes the executive in its enthusiasm to see deportations. Here, the Court framed the issue as a two-way binary choice between deportation and indefinite detention in detention centres (a third possibility – neither deportation nor detention, in case where the alleged “host” State does not claim the individuals as its own – did not seem to occur to the judges). In fact, the only time that the judges did exhibit some concern about the long period of detention, it was because of the cost to the State exchequer, and not out of concerns for liberty. In the wake of this judgment, in recent weeks, we have indeed seen a spate of deportations across the Bangladesh border – of individuals declared non-citizens by a Foreigners Tribunal process whose flaws have been documented for years.
It is notable that the author of the delimitation judgment, and the senior Justice in the deportation hearing, was Justice Oka. Here, then we have the core and the periphery at work: perhaps even unconsciously, the principles of personal liberty, citizens’ rights and the rule of law (pace Sekhri) which govern a Justice’s approach to bail cases under the UAPA and the PMLA dissolve like tears in the rain when it comes to Kashmir and non-citizens. And the encomium after encomium in the wake of this judicial retirement, in which the liberty (and other “progressive”) judgments are stressed while the delimitation judgment is ignored and the non-citizens hearing is either ignored or glossed over as “blip” in an otherwise sterling record, perhaps reflect Indian liberal constitutionalism’s own construction of the included and the excluded, the core and the periphery. In his piece, Sekhri refers to this as a result of the “many contradictory impulses within the Indian legal system, all of which can be traced back to the Constitution itself.” I wonder if it’s something deeper, whether there is a more proximate affinity between Indian liberal constitutionalism and the theories of Carl Schmitt; that you only define yourself by defining and excluding the other, and ultimately, it simply comes down to who, in your world-view, is unlucky enough to become the “other.” And as long as the harsh gaze of State power is turned only towards the other, a Justice who wields that power will still be counted as a “great judge.”
