Devastating Looks: Smirks, Quirks and Judicial Authority

Raoul Vaneigem, the Belgian philosopher writes that “The economy of everyday life is based on a continuous exchange of humiliations and aggressive attitudes. It conceals a technique of wear and tear which is itself prey to the gift of destruction which it invites contradictorily”. In an incredible story in his chapter on humiliation, Vaneigem says that one day, when Rousseau was traveling through a crowded village, he was insulted by a lowly peasant whose insults delighted the crowd. The great philosopher Rousseau was completely taken aback and flushed with anger, but could not think of a single thing to say in reply and was forced to take to his heels amidst the jeers of the crowd. By the time he had finally regained his composure and thought of a thousand possible retorts, any one of which would have silenced the joker once and for all, he was at two hours distance from the village.

Vaneigem then says “Aren’t most of the trivial incidents of everyday life like this ridiculous adventure? but in an attenuated and diluted form, reduced to the duration of a step, a glance, a thought, experienced as a muffled impact, a fleeting discomfort barely registered by consciousness and leaving in the mind only the dull irritation at a loss to discover its own origin?”

This everyday experience that Vaneigem describes is slightly deceptive since it involves an exchange between a renowned philosopher and a bumpkin, and the pleasure of the tale is derived from the illiterate underdog getting the better of the man of letters. But it is more likely that our everyday is marked by experiences of humiliation in which the underdog does not even have a chance to speak back to, let alone offer a biting remark. How many such experiences lay scattered in personal archives of humiliation and shame and it is unlikely that they will ever be recalled in the forgetfulness of public memory.

While the official memory of judicial authority is stored in volumes of reported decisions and cases which unfortunate lawyers have to traverse through, there also exists an equal number of unreported decisions and orders which partially escape public memory. Unreported judgments are often understood as those which did not make it to the reporters.

But are these utterances the only way that we can think of judicial power? Witnessing the courts functioning on a day to day basis also allows you to uncover another secret archive, an archive of humiliation and power. It is said that seventy percent of our communication is non verbal and this must be true of legal communication as well. The secret archive that interests me consists not of well reasoned judgments or even the unreasonable admonishment of the courts, but the various symbolic signs and gestures that accompany them. An incomplete index of the archive includes the stare, the smirk, the haughty laugh, the raised eyebrow, the indifferent yawn, the disdainful smile and the patronizing nod amongst many others.

The trick lies in distinguishing the temporal life of these visual aids. Like a good alchemist, an observer of the court starts to read these potent mixtures and their combination with words, and begins to predict the disastrous consequences that certain looks/words will produce. My experience of following the demolition cases in the Delhi high court have led me to a few tentative hypothesis:

Any reference to the right of the urban poor is responded to with a smirk
Any mention of things like regularization will be met with a laugh
Any challenge to the authority of the court will be silenced with an angry glare

While we have traditionally focused on the consequences of the orders, and the discursive effects of the words, it is time that we learnt from dancers and pay attention to the subtle meanings of looks and gestures. After all if models have looks that can kill, judges have looks that can demolish.

But like everything else in this country, these visuals aids are also a scarce resource and have to be carefully allocated for maximum efficiency. The courts follow a ‘needs based approach’ in their allocation of stares and glares. The more experienced and senior the lawyer, the less likely that s/he will require these visual aids, and in exceptional circumstances you may even have a situation where the lawyer is willing to trade in some of their own visual aids with the judges. But if you happen to be a younger lawyer or one of those cantankerous litigants arguing for impossibilities like fairness and justice then you will be accorded a larger share of these visual aids.

Having worked out the first step, namely the temporal logic of the court glares, you will then be required to move to another plane. To begin with, you must first acknowledge that the world of visual legal communication is a secret world in which only the initiated can participate. Lay people can try their luck, but at their own peril. When Arundhati Roy stood on a hill and laughed at the tender concern of the Supreme Court in the Narmada Bachao Andolan case, she was hauled up for contempt. Thus if you are to participate in language of the court, you can only do it clandestinely, with silence or whispers being your safest weapon.

Over a period of time you will begin to develop a wider vocabulary and it will be useful to note them down for future reference, for without a handy dictionary of these secret codes, the ordinary language of judgments and decisions fail to provide any intelligible meaning. Consider for instance the following exchange over a matter related to a demolition of large basti.

The court appointed commissioner rises to make his indignant observation that a large portions of prime public land in North Delhi (more than 51,000 square yards to be precise) is being encroached on. The judge’s face reveals an appalled and pained look. The lawyer appearing on behalf of the residents of the basti objects to the statement of the commissioner and points out that this is not a case of encroachment on public land but that there in fact exists a J & J settlement which has evolved over many years and the residents are entitled to a fair treatment in law. He further argues that the facts alleged by the court commissioner is untrue and each one of them can be contested. The expression of pain and appall quickly morphs itself into a smirk and laugh as the judge says, that the high court is not the space for determination of facts and facts should be considered by the appropriate authority. The lawyer pleads that in this case there is no appropriate authority since the ‘facts’ are produced either by the monitoring committee or the court commissioners and the court is passing orders relying on these very ‘facts’. In record breaking speed, the smirk is quickly replaced by a look of absolute indifference and the line is repeated that the court is not the interested in questions of facts.

The fantasy of pure unadulterated experience has inspired philosophers and poets alike. The equivalent fantasy of appellate judges is in the idea of pure unadulterated engagement with questions of law, untainted by the messy details of facts. After all the task of judicial interpretation lies in the world of words, while the word of facts is enmeshed in experiences of pain and violence.

Rana Gupta in his amazing story, the Millionaire’s sleep describes a child prodigy who discovers that the secret of music lies not just in the melody or the tune but in their combination with time. Thus playing Beethoven’s 5th symphony at twelve in the afternoon produces very different results from playing it at seven in the evening. In a similar vein it could be argued that the secret history of judicial authority lies not in their sovereign utterances alone but in their combination with the quotidian but under examined smirk or glare. The challenging task ahead for the ethnographer/ historian of the daily life of courts lies in completing the gap in the official archives of the courts by rendering them more sensual; to fill in the empty spaces between words with the appropriate emotion, the correct gesture or look, without which the utterances themselves seem to be incomplete in meaning.

Thus if one were to try and speculatively reconstruct decisions with their proper affect, it might look lie this. This is from the much quoted paragraph in Almitra Patel v. Union of India

Establishment or creating of slums, it seems, appears to be good business and is well organized (Sardonic but flat tone). The number of slums has multiplied in the last few years by geometrical proportion (rising indignation). Large areas of public land, in this way, are usurped for private use free of cost (Raised eyebrows displaying Irritation). It is difficult to believe that this can happen in the capital of the country without passive or active connivance of the land owning agencies and/or the municipal authorities (hands raised with look of incredulity and rage) . The promise of free land, at the taxpayers cost, in place of a jhuggi, is a proposal which attracts more land grabbers. Rewarding an encroacher on public land with free alternate site is like giving a reward to a pickpocket (venom and spite mixed with sarcasm).