The Supreme Court has held that the use of extra-legal armed forces in Chhattisgarh is unconstitutional. Responding to a PIL filed by Nandini Sundar, Ramachandra Guha and E.A.S. Sharma, the court’s decision turns on the nature of the Salwa Judum and the appointment of special police officers under the Chhattisgarh Police Act. But if it were a judgment that had merely ruled on the technicalities, it would have been a welcome and competent order, but would have missed its moment of constitutional greatness. This judgment attains such greatness by virtue of its deft combination of insightful legal analysis, the articulation of a moral vision of constitutionalism and development and its sharp invocation of rhetoric (in the best sense of the term) and fiction to buttress its arguments.
Fiction, William Gass reminds us is the figure of truth. Law has always produced and promoted legal fictions and the substantive interpretation of law often rests upon on a body of rhetorical figures and scenarios. The imaginative and moral character of legal fiction can often be found wanting, but there are times when the courts produce inspired moral visions that outdo even literature. Although fiction in the manner of its making, is pure philosophy, Gass says that no novelist has created a more dashing hero than the handsome absolute, or conceived more dramatic extrications- the soul’s escape from the body, for instance, or the will’s from cause. Nandini Sundar v. State of Chattisgarh is an excellent example of the ways in which the law can productively use metaphor as legal argument (‘our constitution is not a pact for national suicide’)
There will be time in the near future to examine all the nitty gritties of the judgment, but for now lets celebrate this amazing judgment. I am reproducing some extracts which may be of interest, and highlighting some of the key metaphors that the judges use in describing the state of affairs in Chhattisgarh and India more generally. (Full text available here; .pdf, 58 pages.) Continue reading A beacon of light in the heart of darkness: SC holds Salwa Judum unconstitutional