Law & Policy BRIEF

Invisible Judgments: Locating Dissent between Vol. IV | Issue 6 | June 2018

Law and Literature

This essay makes a case for removing some of the barriers that exist between the realms of law and literature. Not all
legal documents come attached with a force that mandates implementation. Conversely, there is a realm of literary
texts that do intend to reach beyond the written page and translate ideas into action. Here I make a case for judicial
dissents and theatrical plays as texts that occupy the first and second category respectively. If the dissenting opinion is a
literary text then what forms might it occupy? And if the theatrical text constitutes a form of dissent then what iteration
might it take to speak to the judicial dissent?

A judgment is rooted in the closure of possibility. Shoshanna Five years after Foucault's lecture on heterotopian spaces, Italo
Feldman tells us that the law is a function of limits; that a trial closes Calvino's Invisible Cities catalogued 55 visions of the city of Venice.
and encloses a case in the past. Decisions may be challenged at Over the course of the book, the explorer Marco Polo gives an
future points of time, the process of appeal might be activated, a account of his travels to the emperor Genghis Khan, describing a
subsequent bench might overturn a decision, and yet the moment of dizzying array of cities ranging from spaces where earth replaces air
decision carries with it a weight of finality, a threat of force, the “field or where a parallel space for the unborn exists alongside the world of
of pain and death” within which legal interpretation takes place. the living. These architectural thought experiments ultimately
emerge as pieces contained within the world of Venice, opening up
The dissenting judgment exists in a somewhat different place,
the possibility of what the space of the city can be, and how we might
however. As Kenji Yoshino notes, dissents are spatially and
inhabit and live within that very space.
temporally distinct from the majority opinion, operating as
rhetorical islands distinguishable from the majority opinion and Through the frame of the dissenting judgment I want to ask a
focusing their attention on the future.1 This rhetorical freedom related series of questions in my essay: What worlds does dissent
exists in part because the dissent at the point of articulation lacks try to imagine? What are the different ways in which we can think
the force of law. In the inverse relationship between force and of the dissenting judgment as a literary document, as constituting
fancy then, the dissent acquires the potential to be fantastical its own distinct genre(s)? And how can we imagine the theatrical
because of its distance from legal force. play as yet another kind of dissenting judgment?
If the judicial dissent is a legal artifact with muffled force, the
dramatic play is a literary artifact with amplified force. Percy Shelley I. Dissent as Hope
calls poets the unacknowledged legislators of the world: the “The dissenter's greatest permission is to imagine a better world,
playwright nudges closer to acknowledgment. Theatrical texts often to be the prophet of eternities.”2
contain a more direct ability to communicate meaning. Hannah
Taking off from Kenji Yoshino's observation above, the first frame to
Arendt tells us that theatrical plays tend to address us as citizens in a
place the dissenting judgment within is that of hope. In striking out
manner distinct from other creative mediums. In particular, I argue
from the majority and choosing to express an opinion that must be
that plays which directly address and critique court decisions or
necessarily overshadowed by the judgment of the court, the
laws occupy a realm similar to that of the legal dissent.
dissenting judge orients themself to a future possibility. As Justice
The legal dissent pivots towards the literary; the theatrical dissent Brennan of the US Supreme Court once noted, the dissent is
pivots towards the legal. Both serve to open up the law, to “those offered as “a corrective - in the hope that the Court will mend the
aspects of the past that legal closure effaces”. error of its ways in a later case.”3
Yoshino finds that the space the judicial and theatrical dissent occupy Hope as a genre comes closest to the idea of the liteary utopia, or
points to a Foucauldian heterotopia, a place which situates a utopia rather the heterotopia that Foucault imagines. The hopeful
within a real site, where the image of the utopia is both represented dissenter constructs an adjacent world that grapples with the
and contested. present while also leaving open a door for future transformation.

About the Author

Danish Sheikh has a B.A., LL.B. from NALSAR University of Law and an LL.M. from the University of Michigan. He is an Assistant Professor at Jindal
Global Law School.

Law & Policy Brief, Vol. IV (6) June 2018 1

There is no guarantee for this future world to emerge, little that the A few years later, the Court found laws that criminalized sodomy to
judge themself can do outside the process of the court, and so it is violate the Constitution's Due Process Clause in Lawrence v. Texas.
that the dissent becomes a document that captures a rhetorical In both cases, Justice Scalia wrote a withering dissent that was
force rife with potential. In cases where that potential is realized, the focused less on the interpretation of the respective constitutional
future words cast a retroaspective sheen on what has come before. clauses, instead making adjacent digs at the underlying
Justice Subba Rao's dissent in Kharak Singh v. State of UP4 stands as assumptions behind the decision.
an important example of such a dissent. The case dealt with the In the Romer dissent for instance, he focuses on the Court's finding
question of whether state surveillance was against the right to that the Colorado initiatve displays animus towards
privacy, in a situation where the petitioner challenged regular homoosexuality: “The Court's opinion contains grim, disapproving
police surveillance even after he was discharged from a dacoity hints that Coloradans have been guilty of “animus” or “animosity”
case due to lack of evidence. The surveillance in question was toward homosexuality, as though that has been established as un-
conducted under UP regulations which allowed amongst other American.” Of course, “American-ness” was never part of the
intrusions, domiciliary visits at night to Kharak Singh's house. A six argument but that doesn't stop the judge from forging his claim,
judge bench of the Indian Supreme Court examined the regulations which he then bolsters by finding that even if there was any animus
against the touchstone of Article 21 of the Constitution. While they on the part of the Coloradans, it was “the smallest conceivable”, a
ultimately found the specific provision allowing domiciliary visits to claim that was “was belied by the virulently homophobic campaign
be unconstitutional, they did not hold privacy to be a guaranteed that surrounded Amendment 2, which even included the
constitutional right. The Court's understanding of the impact of sensationalist claims that gay people "eat feces and drink raw
surveillance meant they were only able to imagine a direct blood.”9 In his Lawrence dissent, Justice Scalia goes even further,
domestic intrusion as a constitutional rights infringement, while accusing the Court of supporting “the so-called homosexual
any kind of diffuse apprehension of the petitioner that the police agenda” and departing from its constitutional role as a neutral
were on the watch for his movements was cast aside. observer.
Those fears were taken seriously by Justice Subba Rao who crafted Susanna Lee discusses how this tone is typical of the conservative
a dissent striking down the regulations in their entirety, in the dissent. As distinguished from the liberal dissent which tends to be
process imagining another space where the law did take more measured in its disagreement with the majority, choosing to
cognizance of the intangible: “How could a movement under the engage on more carefully tailored legal grounds, the conservative
scrutinizing gaze of the policemen be described as a free dissent is often animated by a stronger rhetorical force. Would the
movement? The whole country is his jail”. This is a vivid metaphor term polemic be of any use to in describing this category, even as
that the judge goes on to further illustrate with an example: “A we acknowledge that a number of liberal dissents could still match
visitor, whether a wife, son or friend, is allowed to be recevied by a
this rhetorical force? Or is there perhaps another genre, say the
prisoner in the presence of a guard. The prisoner can speak with the
dystopia, that better describes this form of dissent?
visitorl but, can it be suggested that he is fully enjoying the said
freedom? It is impossible for him to express his real and intimate
III. The Internal Dissent: Dissent as Counterfactual
thoughts to the visitor as fully as he would like.”
“Two roads diverged in a wood, and I -
Ignored by the majority, fifty-five years later, Justice Subba Rao's
I took the one less travelled by,
dissent was “resurrected in its entirety”5 by a nine judge bench of
And that has made all the difference.”
the Supreme Court in KS Puttaswamay v. Union of India.6 Beyond its
unanimous finding that the right to privacy was a constitutional - Robert Frost, The Road Not Taken
right, an opinion by Justice Nariman specifically referred to Justice Robert Frost's poem is often taken as a celebration of taking the
Subba Rao's opinion as one of the “three great dissents” in the uncharted path, the courageous decision to veer from known
history of Indian constitutional law. territory. However, as Ravit Reichman observes,10 the title of this
poem points us to a different state of mind as far as the protagonist
II. The Conservative Dissent is concerned: it is the road not taken that seems to quietly haunt
“Today's opinion is the product of a Court, which is the the traveller here. Reichman views this as the internal dissent of a
product of a law-profession culture, that has largely figure who fleetingly imagines another existence, who wonders
signed on to the so-called homosexual agenda ... the whether things could have been different. The road less travelled
Court has taken sides in the culture war, departing from may have worked out just fine for the traveller, but we are left to
its role of assuring, as neutral observer, that the wonder about that other possibility at the same time.
democratic rules of engagement are observed.” The counterfactual emerges as a moment or an entire genre across
- Justice Antonin Scalia dissent in Lawrence v. Texas7 different works of literature. The bulk of Ian McEwan's Atonement
“This Court has mistaken a Kulturkampf for a fit of spite” is a counter-reality composed by one of its characters in an effort to
provide two lovers a happy ending which was denied to them by
- Justice Antonin Scalia dissent in Romer v. Evans8
her own actions in reality. Kazuo Ishiguro's Remains of the Day ends
The conservative dissent often has a different rhetorical tone from with a gently devastating moment as a butler lets his tightly
the liberal one. The dissenting opinions of Justice Scalia of the US constructed guard down to imagine a possible life of happiness
Supreme Court tend to exemplify this particularly well. with a woman he has loved for years, even as it becomes clear that
In Romer v. Evans, the Supreme Court held an intiative barring this will never come to pass.
antidicrimination laws protecting gays and lesbians passed by And in Reichman's own essay, she looks to a moment in EM Forster's
Colorado voters to be a violation of the Constitution's Equal A Passage to India where a character momentarily lapses into a vision
Protection Clause. of a life that might have been, before snapping back to the present.

2 Law & Policy Brief, Vol. IV (6) June 2018

“The interruptions of possible worlds do not change the outcome of Most of this essay has looked at the dissenting judgment as one
the story, but they help us to judge it differently, to feel at its close that emerges from the court of law. With this final section I imagine
that the parting of ways might not be inevitable, that a more fitting how we might look at dissent that emanates from plays dealing
end - indeed entirely a different novel - might have been written”11. with legal/political themes as yet another component of the
Dissent may not always be articulated in the terms of a dissent - and dissenting judgment. I use two plays from India in particular to
even when articulated it may not alter the resolution of the touch upon how they imagine different frames of dissent in relation
decision. In telling law's stories we tend to understand a decision as to the Suresh Kumar Koushal decision: Dohri Zindagi performed by
“dissenting” only when composed by a member of the same bench Neha Singh and Bhumika Dube and Contempt, a rendition of the
that decides another way. For this particular frame, I will imagine a Section 377 hearings that I have written.
different situation: where a moment of dissent is articulated by a
separate judicial opinion in relation to one that comes prior. In many Contempt is a more straightforward dissent: the core of the play is
instances, a subsequent court's disagreement with a prior court's four scenes based on the unofficial transcripts of the Suresh Kumar
reasoning would result in the former judgment being overruled. In Koushal hearings. Each scene features a different line of argument
the case of the internal dissent, this is not quite what happens. employed by a lawyer before the two judges: the historical basis of
the law, the law's impact on HIV/AIDS efforts, the law's
In 2013, a two judge bench of the Indian Supreme Court passed the
legitimization of police violence, the law's effect on the dignity of
Suresh Kumar Koushal decision which upheld the constitutional
LGBT persons. As each of these scenes progresses, the play shows
validity of Section 377 of the Indian Penal Code. The judgment was
how the judges constantly invoked the same question - what
widely understood as effectively decriminalizing sexual acts done
constitutes carnal intercourse against the order of nature - to avoid
by LGBTQ individuals in the country. To reach this conclusion, the
substantively engaging with the content of the lawyers' arguments.
judges make the claim that Section 377 of the Indian Penal Code
My vision of dissent within this play is in the form of the scenes that
criminalizes “carnal intercourse against the order of nature”
are juxtaposed with each narrative in the courtroom - monologues
without specifically targeting LGBTQ individuals. Framing the issue
in this manner paves the way for the Court to reject arguments that feature the lived narratives of different queer persons. Where
about inequality and discrimination faced by what it terms as the courtroom space denies the experience of queer subjectivity, I
ultimately a “miniscule minority”. attempt to place the voices of the very same persons in the
courtroom space as an implicity denial of the Court's rhetoric.
Four months after the decision, another two judge bench of the
Court in the decision of NALSA v. Union of India held that non- As regards the other “dissenting play” I refer to, the Koushal decision
recognition of transgender identity amounted to a constitutional is never actually referenced in the world of the play. I still find
rights violation. In making this assertion, the Court takes a detour to however that the play constitutes a strikingly powerful response to
mention Section 377, in particular noting the 1884 Allahabad High the decision. Dohri Zindagi was first presented in India in 2016, three
Court judgment of Queen Empress v. Khairati where a transgender years after Koushal. The play is based on a short story by Rajasthani
person was arrested under Section 377 on suspicion of being a author Vijay Dan Detha, following two small town women in love
habitual sodomite. The NALSA judgment takes note of this case as a who elope and find a space where they can escape persecution.
demonstration of the fact that Section 377, though associated with During the final arguments before the Supreme Court in 2012,
specific sexual acts, highlighted certain identities, including hijras there was a moment when the judges took pause in their constant
and was used as an instrument of harassment and physical abuse excavation of what constituted carnal intercourse against the order
against hijras and transgender persons. This seemingly throwaway
of nature. It was a moment prompted by a story in a book titled
statement in fact undermines the core of the reasoning in the
Same Sex Love in India: Readings from Literature and History,
Koushal decision, which is ultimately based on an argument that
edited by Ruth Vanita and Saleem Kidwai. The story was Vijay Dan
Section 377 does not target any specific group identity.
Detha's Dohri Zindagi. The Court had just resumed after lunch,
The moment of rupture is fleeting, however. Barely has the judge when Justice Singhvi remarked that he'd had a chance to read the
made this statement before he circles back to note that he will story over his break. What followed was one of the few truly
actually make no opinion on Section 377 since the Suresh Kumar reflective moments during the course of a six week hearing where
Koushal decision has already ruled on its constitutionality. There the judge spoke about the struggles he'd had with the case, while
are other issues that concern the Court here, we are told. In the acknowledging the reality of the story he had read: that same-sex
process, what we are left is a fleeting moment of internal dissent, a relationships had indeed formed a part of the country's past. This
tentative possibility that remains unrealized. was a remarkable moment, all the more notable for its complete
erasure from the text of the final decision.
IV. Theatres of Dissent
The existence of the play Dohri Zindagi then serves as a reminder of
Noting that most forms of pre-modern theatre maximized the
this moment that is left out of the decision. And even as Suresh
audience's awareness that it embodied a community that
Kumar Koushal v. Naz Foundation closed off the reality of queer
transcended familial and neighbourly relations, David Wiles argues
that the very nature and purpose of theatre is to create intimacy (albeit temporarily14) Dohri Zindagi re-opens it. Over the
communities.12 For Bertolt Brecht, this community is to be created course of the play, two women fall in love, resist a patriarchical
for a specific purpose. Brecht's plays were not designed to evoke society that will not allow them to be together, escape to another
feelings of compassion and pity in the audience: their aim was to space where they encounter transformations both metaphysical
teach the audience so that each member left the theatre a changed and emotional, and in a final twist, are allowed to celebrate their
person, “ready for political action”.13 sexuality in an autonomous manner. They dissent.

Law & Policy Brief, Vol. IV (6) June 2018 3

Conclusion End Notes
I have argued in this essay that a dissent that emerges from a Court 1
Kenji Yoshino, Of Stranger Spaces in Austin Sarat (ed)., Dissent.
of law can be viewed on a plane that is different from the law 2
Kenji Yoshino, Of Stranger Spaces in Austin Sarat (ed)., Dissent.
3
pronounced by the majority. Where the former has an immediate W.J. Brennan Jr., "In Defense of Dissents," Mather 0. Tobriner
sovereign force, the dissent operates in a sphere that is more Memorial Lecture, reproduced in H. Clark, Justice Brennan: The
literary by default, where it could be viewed as rhetorical device, or Great Conciliator (Secaucus, N.J.: Birch Lane Press, 1995) at 256.
4
an appeal to the intelligence of a future day, or an act of internal 1963 AIR 12951
5
struggle. Viewed like this, it opens up the literary quality of the See Gautam Bhatia, The Supreme Court's Right to Privacy
dissent; and having done so, it invites other literary forms into the Judgment - III: Privacy, Surveillance, and the Body
6
realm of the law. The particular literary form that I have chosen as its (2017) 10 SCC 1.
7
closest correlative is a certain kind of theatrical play. The plays that I Lawrence v. Texas, 539 U.S. 558, 602 (2003)
8
understand as occupying the space of the judicial dissent are ones Romer v. Evans, 517 U.S. 620 (1996).
9
M.K.B. Darmer, The Enduring Force of Scalia's Lawrence and Romer
that tend to directly speak to a court or policy decision. In doing so,
Dissents: The Case for Proposition 8, 22 La Raza L.J. (2015).
the plays perform a dissent that pushes the text into a realm that
Available at: http://scholarship.law.berkeley.edu/blrlj/vol22/iss1/
occupies a more immediate force than other literary forms. 10
Ravit Reichman, The Ethics of an Alternative in Austin Sarat (ed),
The first direction this points us towards examining further is the Dissent.
11
interdiscipline of law and literature – in particular, the branch that Ravit Reichman, The Ethics of an Alternative in Austin Sarat (ed),
looks at the law as literature. To make a case for dissents as a form Dissent.
12
of literature makes the argument for examining this particular area David Wiles, Theatre and Citizenship: The History of a Practice,
of the law using literary theory that much stronger. The second Cambridge University Press, 2011.
13
direction we might look towards is how this understanding of the See Yasco Horsman, Theaters of Justice: Judging, Staging and
force of legal theatre, if I might use the term, aids us in using theatre Working Through in Arendt, Brecht and Delbo, Stanford University
press, 2011.
as a means of activating critique against the judiciary or, even more 14
A five judge constitution bench of the Court is expected to hear the
broadly, the state. What would it mean for more legal actors –
matter later this year.
lawyers, litigants, activists – to engage with the form of theatre as a
device for thinking about social change?

About the O.P. Jindal Global University

O.P. Jindal Global University (JGU) is a non-profit global university established by the Government of Haryana and recognised by the University Grants
Commission (UGC). JGU was established as a philanthropic initiative of its Founding Chancellor, Mr. Naveen Jindal in memory of his father, Mr. O.P. Jindal. JGU
has been awarded the highest grade 'A' by the National Accreditation & Assessment Council (NAAC). JGU is one of the few universities in Asia that maintains
a 1:13 faculty-student ratio and appoints faculty members from India and different parts of the world with outstanding academic qualifications and
experience.
JGU is a research intensive university, which is deeply committed to its core institutional values of interdisciplinarity and innovative pedagogy; pluralism and
rigorous scholarship; and globalism and international engagement. JGU has established eight schools: Jindal Global Law School (JGLS), Jindal Global Business
School (JGBS), Jindal School of International Affairs (JSIA), Jindal School of Government and Public Policy (JSGP), Jindal School of Liberal Arts & Humanities
(JSLH), Jindal School of Journalism & Communication (JSJC), Jindal School of Art & Architecture (JSAA) and Jindal School of Banking & Finance (JSBF).

Editors and Conveners of the Law and Policy Research Group

Dr. Ashish Bharadwaj is an Associate Professor in Jindal Global Law School, and a founding editor of the Law & Policy Brief. He serves
as Director of Jindal Initiative on Research in IP & Competition (JIRICO) at O.P. Jindal Global University, a visiting professor at Institute
of Innovation Research in Tokyo, and an affiliated faculty of CIPR, Maurer School of Law in Indiana University Bloomington. He holds
a B.A. (Hons.) and M.Sc. in economics from Delhi University and Madras School of Economics, LL.M. in law and economics from
Rotterdam, Hamburg and Manchester, and Ph.D. from the Max Planck Institute for Innovation & Competition in Munich.
Sannoy Das is an Assistant Professor at Jindal Global Law School. He holds a B.Sc. LL.B. (Hons.) from National Law University, Jodhpur
and read his masters¹ in law from Harvard Law School. He researches on questions of law and history, international trade, political
economy and political theory. Prior to joining the academy, he practiced law at the High Court at Calcutta. At the law school, apart
from teaching courses on civil litigation, international trade and interdisciplinary electives, he also co-ordinates moot court activities.

4 Law & Policy Brief, Vol. IV (6) June 2018