Thy Name is Illusory Reference

The article examines two Supreme Court cases, one on Jallikattu and the other concerning same-sex marriage, to show how judges' discretion shapes judicial outcomes - a tendency discussed by Julius Stone decades ago.
Supreme Court
Supreme Court

This piece seeks to analyse two judgments delivered by the Supreme Court of India in 2023. These decisions are Animal Welfare Board v. Union of India and Suprio @ Supriya Chakaborthy and Another v. Union of India

Both were decisions rendered by five-member Constitution Benches of the Supreme Court. The first one was with respect to the legality of an amendment to the Prevention of Cruelty to Animals Act, 1960, wherein the State of Tamil Nadu had introduced an amendment to protect the practice of Jallikattu.     

The second decision, popularly known as the same-sex marriage case, was the challenge to laws with respect to marriage and adoption insofar as the same came in the way of the legal recognition of a marital relationship between non-heterosexual persons and, in turn, their right to adopt children. 

In both these cases, there was an overlap of claims based on the social situation in the form of culture/ religion vis à vis legal principles. 

The Court was called upon to examine the social fabric with respect to Jallikattu as well as marriage, to analyze whether these concepts were intrinsically connected to culture and social institutions.

In the first case, the Supreme Court referred to the amendments made by the State legislature and discussed the legality of the same based on the Constitution and larger principles. 

The relevant portion of the Supreme Court’s conclusion said:

“Jallikattu is a type of bovine sports and we are satisfied on the basis of materials disclosed before us that it is going on in the State of Tamil Nadu for at least the last few centuries. This event essentially involves a bull which is set free in an arena and human participants are meant to grab the hump to score in the “game”. But whether this has become an integral part of Tamil culture or not requires religious, cultural and social analysis in greater detail, which in our opinion, is an exercise that cannot be undertaken by the Judiciary.

From the above quotation, the position of the Court became very clear. The Court washed its hands off the duty or need to verify the background of the enactment which had relied upon ‘culture’ as the need to bring in the amendment to the law.

The Court concluded with the following words:

“The question as to whether the Tamil Nadu Amendment Act is to preserve the cultural heritage of a particular State is a debatable issue which has to be concluded in the House of the People. This ought not be a part of judicial inquiry and particularly having regard to the activity in question and the materials in the form of texts cited before us by both the petitioners and the respondents, this question cannot be conclusively determined in the writ proceedings.”

Here, the Court admitted that it is debatable whether the amendment was brought in to preserve the cultural heritage of a particular State or not. However, as per the Court, examining the same is not the duty of the Court - rather it has to be done by the parliament.  

I find this position taken by the Court to be correct because, as rightly held by the Court, the same is not something that is within the scope of writ jurisdiction.

The second case raised a larger question as regards the sanctity of marriage in a social context and the role of laws relating to marriage in that landscape. 

There were four separate judgments by the five-member Bench. The majority opinion was delivered by Justices Ravindra Bhat, Hima Kohli and PS Narasimha with Justice Narasimha delivering a separate concurring opinion. CJI DY Chandrachud and Justice Sanjay Kishan Kaul delivered separate dissenting judgments.

The judgements of Justice Bhat and Justice Narasimha brought out the conclusion in the case. All four judgments elaborately discussed the relevance of marriage and even the social background of the concept of marriage. The pages occupied by the judgment with respect to the larger social fabric involved in the concept of marriage form a substantial portion. The judges have taken the pain to do the same so as to render their conclusions.

In this case, the Court took the effort to examine the social/ cultural aspects and extracted reasons from the same to arrive at its conclusion. 

This was in contrast to the first case, wherein the apex court excused itself from the said exercise even though it opined that the issue was debatable.

Julius Stone, in his work titled "Legal System and Lawyers Reasoning", discussed the use of logic in the functioning of the common law system.  Chapters six and seven of the same is of import in this context. Few extracts from the said work seem relevant in this context.

Lord Wright has pointed out that the use of 'fundamental rules of law' as the basis of logical development is an important part of the common law judicial process.  Yet there is much language to the contrary as well."

"We have in England a deep distress of logical reasoning…  Fortunately, our judge-made law has seldom deviated into that path …” 

The decision is a matter of outlook and impression rather than one for logical argument."

We are not primarily concerned here with the narrow field but rather with the much wider one in which decisions take the form of logical derivation and logical testing. 

The answer has repeatedly been given that on one hand the “logical form” is often “fallacious” and on the other, the exclusion of considerations of social needs, social policies and personal evaluation by the court is correspondingly illusory.    

Lord Wright has said that “judging is an act of will” and that “notwithstanding all the apparatus of authority, the judge has nearly always some degree of choice."

Lawyers always admit that today, cases do occasionally arise requiring a judicial choice free of logical compulsions either because a substantial part of the facts are of first impression or because there is a square conflict with pre-existing authority or dictum.

The judge, as per Julius Stone, does not always have a reference and often converts or transforms something into a reference for the purpose of reaching a desired conclusion. These references are illusory. Stone classified these types of illusory references into various categories. 

The third category of such illusory references is called the “Legal Categories of Competing Reference.” 

Under this category, there is a reference to the case of Haseldine v. Daw, wherein a controller of a lift was involved. One outcome would have resulted if a certain person involved in the case was considered a custodian of reality and another result would have ensued if he was considered a common carrier. 

In other words, a judge in this context had the freedom to decide between these two options depending on the result sought to be achieved.

From the outcome, it may appear that the judge appreciated the merits of the issue, identified the correct reference and made the conclusion based on that. The exercise of choice appears as a reference.

However, it is actually a reference based on the exercise of discretion by the judge, which in turn is based on the conclusion that the judge has already arrived at. 

In such cases, the narrative of the judge with respect to the selection of a category is nothing but the creation of an illusory reference.

The multiple categories of illusory reference identified, coined and narrated by the jurist still hold relevance today. Common law judges today are rendering judgments by relying on these references. 

The two judgments delivered by the Supreme Court of India - one on Jallikattu and the other in the same-sex marriage case -  are cases in point.

In a nutshell, it can be observed that the Supreme Court took two contradictory positions in these two cases and these positions aided the Court in arriving at its conclusions.

The third category of competing references as explained by Julius Stone is clearly identifiable in this exercise

About the Author: The columnist is a lawyer with Vijayaraghavan and Devi Advocates and practices before the Kerala High Court.

Disclaimer: Views expressed are of the author and do not necessarily reflect the views of Bar & Bench.

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