ALF Law and Literature Reading Group: Reading Literature in the Law (Session 3, May 26, 2015)

The third session of ALF’s Law and Literature Reading Group asked the participants to come prepared with a simple exercise: we had to each pick a writer/ poet and find examples of their words being used in Indian judgments. The idea was to examine the way in which different judges utilized literary artifacts: was it confined to adding a welcome flourish to dry legal writing? Was there a rhetorical purpose served in bringing literature into the law? Were there instances where literature became a kind of precedent in and of itself?

The answers were varied, as were the writers. There was quite a range, from novelists like Charles Dickens, Franz Kafka and even H.G. Wells, to poets and playwrights like Robert Frost, Vemana and Shakespeare, to figures outside the established lines of ‘literature’ such as Manu and Sigmund Freud. In talking about the session, we’ll break it up along these lines.

THE NOVELISTS

Charles Dickens stands as a prominent figure for scholars interested in representations of law in literature. The Dickens novel that most strongly foregrounds the law is Bleak House, centered as it is around the Chancery Court. Little surprise then to find it referenced in Indian Court decisions. The novel is deployed as a metaphor for the legal system in the context of judicial delays where the judge notes:

“Unfortunately it is the Bleak House image of the judiciary that has stuck and many regard the Court as a place which exhausts finances, patience, courage and hope, overthrows the brain and breaks the heart.”

Where a judge wanted to express his sympathies towards sex workers in illegal detention, he noted how sex workers are engaged in their profession out of compulsion, using the words of Nancy from Oliver Twist: “You adapt or you die”. The allusion works on more than one level. Though Nancy’s profession is never expressly mentioned in the novel, it is implied, and Dickens asserts in a later preface, “… the girl is a prostitute”.

Then of course there are the more nonsensical invocations. In one case, the judge tries to explain the doctrine of legitimate expectation by referring to Great Expectations using incomprehensible logic and a misunderstanding of the novel in the process; in another, the judge cites A Tale of Two Cities’ famous opening lines somewhat needlessly: “It was the best of times, it was the worst of times. This quotation is to be remembered when the Court discusses the need for reservation to be continued in the country”.

One of us picked up Mark Twain in an effort to explore the judicial sense of humour and how (if it exists) does it get incorporated in judgments. In a case where the Delhi High Court was clamping down on advertisement of cigarettes, they used Twain’s ruminations on the impossibility of quitting: “To cease smoking is the easiest thing I ever did, I ought to know because I have done it a thousand times.” In another, landmark case where the Court was lambasting municipal officials for negligence in performing basic obligations, it invokes legal authority first (Article 51-A(g) mandates compassion for living creatures). The Court then provides rhetorical support to its ire, noting that man’s inhumanity to man made Twain remark: “Man is the only animal that blushes. Or needs to.” In a more somber vein, Franz Kafka was used in a judgment where a constable was charged with attempting to molest a woman. The judges likened the inconsistency in the statements made by the prime witness and the charges levelled against the petitioner with The Trial, where “a man was arrested and prosecuted by a remote, inaccessible authority, with the nature of his crime revealed to neither him nor the reader”. The judges called the trial executed thusfar Kafkaesque, “a surreal distortion of acts”.

THE POETS AND PLAYWRIGHTS

By far the most quoted of the writers in the discussion was William Shakespeare, with almost a thousand judgments namedropping the Bard (give or take a few referring to Shakespeare Sarani). A particularly prevalent quotation is the one uttered by dying nobelman Melun in King John:

“Have I met hideous death within my view, retaining but a quantity of life; Which bleeds away even as a form of wax, resolveth from his figure against the fire?
What in the world should make me now deceive, since I must lose the use of all deceit? Why should I then be false since it is true that I must die here and live hence by truth?”

Melun’s dying declaration to the renegade English nobles is used, unsurprisingly, in a range of cases involving dying declarations. Dying declarations are exceptions to a rule in evidence law where oral evidence must be direct: so if you are otherwise referring to a fact which could be seen, it must be the evidence of the witness who says she saw it. In the case of a dying declaration however, a statement made by a person as to their cause of death is considered relevant evidence, even when administered to, say, a medical professional. In many Supreme Court cases, particularly those authored by Arijit Pasayat, the quotation comes in when the Court is explaining the reasoning behind the evidentiary value of such statements. These cases tend to inevitably end in the Court deciding to hold the statement admissible, and convict the defendant.

An interesting invocation of the extract comes into play in another Supreme Court judgment, where the Court leads up to using it by stating: “There is a historical and literary basis for recognition of dying declaration as an exception to the hearsay rule. Some authorities suggest the rule is of Shakespearean origin”. The law grounding its authority in literature?

In yet another case, the Court testifies to the expressive power of literature: “The rationale behind admissibility of a dying declaration was best expressed, not in any judgment, but in King John”.

Another piece of verse that is quite popular is Juliet’s impassioned declaration:

“What’s in a name? That which we call a rose by another name would smell as sweet”.

The usages are often quite trivial, added for the empties of rhetorical flourishes. A case on trademark disputes starts with the quote, then going on to add: “This would be acceptable to Shakespeare, but not to WIPO”. Others throw it into the mix in cases involving literal naming disputes: a bus stand, a school, more trademark matters. One of these trademark cases follows the quote by finding a didactic value in it that may or may not have authorial intent: “… the above piece of advice tendered to the people in general by the Bard of Avon appears to have fallen flat on the deaf ears of the parties to the present suit, as they have chosen to ignore the same and preferred to fight over a trade name like kilkeny cats”.

Telegu poet Vemana’s words have been employed in divorce proceedings – “broken iron can be joined together but not broken hearts” – quote poet-judges in multiple cases, perhaps taking the sting out of the fact that, as they put it the “wedlock (that has) now virtually become a deadlock”. Robert Frost finds more acontextual treatment; “And nothing to look backward to with pride, And nothing to look forward to with hope” from The Death of the Hired Man seems to pop up in judgments shorn of preliminaries or explanation.

BEYOND “LITERATURE”

Sigmund Freud comes up a few times, either as medical authority or as more empty rhetoric. A dissolution of marriage case which examined whether all forms of mental illness were a ground for divorce name-checked Freud in talking about theories of mental phenomena, a discussion which ultimately played little part in the ratio of the judgment. Freud was used more efficiently in a case involving a man’s rape of his daughter. In making a case for the heinousness of the offence, the court noted Freud’s words establishing paternal significance: “I cannot think of any need in childhood as strong as the need for a father’s protection”. Freud is used as authority in case of prisoner’s rights, where his writings are used to make the case for reformative justice. “If animals could be re-conditioned, it was felt that human behaviour too, can be transformed through proper reconditioning.”

Freud also gives us one of the more baffling invocations of literary figures, in a case where the judge was examining whether charges amounting to rape and robbery were false. I reproduce the text here below:
“But then he (counsel for the State) wondered as to why she implicated the appellant. I wish we could find the answer …. What did she want? The appellant’s version is that the prosecutrix had demanded a sum of Rs. 2000 which he had regused to pay and this had made her implicate him. John Barrymore says the way to fight a woman is with your hat. Grab it and run. Probably the appellant could not do it. To be honest, the explanation leaves me unconvinced. But then, the question remains unanswered, and perhaps will remain so. And if I sound like Sigmund Freud, I just cannot help.”

The question of course, is what makes the judge think he sounds like Sigmund Freud? We were at any rate unable to answer. Perhaps you will do better.

Henry David Thoreau’s Walden and Civil Disobedience make their appearance in the Indian judicial arvhice, with the former appearing to be quite popular in environmental matters. On forest conservation, Thoreau’s deprecation to the logger’s attitude to great trees is noted:

“The Anglo-American can indeed cut down, and grub up all this waving forest … but he cannot converse with the spirit of the tree he fells, he cannot read the poetry and mythology which retire as he advances”.
In the same breath, the judge points out it isn’t necessary to search for philosophical considerations expressive of strong views for forest conservation; the Constitution of India he notes has done it “in effective enough, and expressive language”.

In another judgment where the Court is leading up to evicting encroachers from the banks of a lake, they use Thoreau’s ruminations on this particular natural resource to perhaps ease the sting of the decision:

“A lake is the landscape’s most beautiful and expressive feature. It is Earth’s eye looking into which the beholder measures the depth of his own nature. The fluviatile trees next to the shore are slender eyelashes which fringe it, and the wooded hills and cliffs are its overhanging brows.”

Unsurprisingly, Manu makes the list as well. In one case involving a dispute between an employee/union and a public sector company, Manu was used extensively to justify punishment, even as his work was quoted to equate an employer with the ‘King’:

“Ancient Law givers of India have also dealt with the significance of imposing proper punishment. In Manu-smriti, ‘Danda’ (punishment) is treated as one, created by Brahma to protect all creatures for the sake of the King ….. Through fear of him (Danda), all created things, both the immovable and the movable, allow themselves to be enjoyed and swerve not from their duties.”

In another matter involving a family business dispute, with a private limited company that was an erstwhile Hindu joint family enterprise, Manu comes up as an authoritative source legally, socially and culturally as far as the idea of loco parentis goes. The Court makes the assertion that Hindu shastric injunctions and “highly cherished Hindu sentiments” place an elder brother or uncle on a higher pedestal relative to younger brothers and fatherless nephews respectively. They go on to reify this statement with the Manusmriti, quoting: “the elder brother was enjoined to support his younger brothers as father provides for his sons”.

The invocation of Manu triggered another point of discussion: how does one categorize this document? Does it constitute a form closer to law, or literature?

H.G. Wells seems to be invoked a fair few times, the Court largely ignoring his science fiction credentials and using him as a historian. For instance in the context of two cases regarding donation seats versus merit seats, he is quoted as saying: “Human history is becoming more and more a race between education and catastrophe”.
Note: This writeup has been prepared with the aid of responses sent in by members of the discussion group.

Written by: Danish Sheikh
Published on: 30 May 2015
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