Is Law Political? — A View from an appellate court litigator in India
The common judge is not an umpire anymore: neutral objective reasoning is impossible because the law does not operate in a vacuum. –– Rahul Unnikrishna
“In The Judge: 26 Machiavellian Lessons, Ronald Collins and David Skover strive to answer the question ‘is law political?’ in an unconventional way by dissecting the unpleasant hypocrisies of the common judge, who is a political actor.
“There are truths and there are unpleasant truths: unpleasant truths, especially about judges in a democratic society, are closely guarded, and not spoken about. Collins and Skover break the conventions and chart out 26 “tactics” the US judges use, which summarise the extent of judicial politics in the dispensation of justice.”
“Machiavelli’s exposition of politics and an unrivaled analysis of the hues of tyrannical political power find its judicial equivalent (Juristocracy, as Ran Hirschl puts it in Towards Juristocracy) in this book. The chapters of this book have been modeled on The Prince – both have 26 chapters. Of course, the way the actors wielded power in those days were different; crass physical force is not required to assert power now. On the other hand, the judicial power exercised by judges is hard to contain as the law is an interconnected web of words that expands and shrinks depending upon the gravity of the underlying variables.”
“What is the nature of power a judge wields? Collins and Skover argue that judicial interpretation of the law is a power of great moment. Indeed, they rightly say that at some point, the interpretative power becomes power to make the law. How else can we but describe the judges of the Supreme Court of India than as “lawmakers”? The explosion of public interest litigations in India is nothing but a judicial revolt against the apathies of the legislature and the executive. Good or bad, this, according to Collins and Skover, will be a classic example of judges, through judicial innovations, translating his or her will into law.”
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“Chapter 7 (‘Carpe Diem: When to Embrace a Case’) of the book is based on the premise that power and glory sometimes wait for one to embrace them. Justice [Jagdish Singh] Khehar’s tenure as the Chief Justice of India is the best example in the Indian context. It is not a secret that Justice Khehar was quite obstinate in not constituting a bench to hear the challenge to the Aadhaar Act. And when Justice Khehar finally decided to constitute a bench, it so happened that the judgment was given on the last week of his tenure – suddenly, the Supreme Court recognised the existence of the right to privacy for Indian citizens.”
“Though Justice Khehar did not write his opinion in the judgment, he will now be praised by legal historians as the Chief Justice who constituted a nine-judge bench to hear the right to privacy issue. This is best described by the authors: ‘And when the time is ripe, one has to do little more than pick the fruits of fame.’ . . . .”