Judging softly with a song

Who would have known that a song dealing with isolation and emotional detachment would be relied upon by a judge in pronouncing his order? ‘I am a Rock’ by Paul Simon (1965) begins:

“A winter’s day/ In a deep and dark December

I am alone/ Gazing from my window

To the streets below/ On a freshly fallen, silent shroud of snow

I am a rock/ I am an island.”

Judge Stanley Marcus of the Eleventh Circuit in the USA used the song to decide an issue of maritime jurisdiction where the question was whether an interdiction occurred at sea near a rock or an island. According to the song, as the Judge pointed out, it can be both. He even went on to quote the entire song in his order.

One judge quoted Johnny Cash in an order to help determine the meaning of the word “whenever” as used in a state constitutional provision. It helped corroborate the judge’s ruling in terms of his interpretation of the word.

Take the case of this line from Bob Dylan’s ‘Subterranean Homesick Blues’ (1965) – “you don’t need a weatherman / to know which way the wind blows.” This line has been used so frequently that it has become a legal maxim in and of itself, to express the concept that there are some evidentiary issues that are so extensively known and commonly accepted that an expert opinion on that topic is unwarranted.

There are several other verses that have become legal maxims as well.

Reference to song lyrics in court judgments in the West is widely prevalent.

In India too, the phenomenon exists, though in modest number. Song lyrics – from films in Hindi and regional languages, lyrics of English songs, Urdu couplets, Shakespeare, English poets, have been quoted in court judgments.

When Sahir Ludhianvi penned the song ‘Chalo Ek Bar Phir Se, Ajnabi Ban Jaayen Hum Dono’ for the film Gumrah in 1963, he could scarcely have imagined that 48 years later the lines of the song would mark the end of a controversial case. While discharging Ottavio Quattrocchi from the Bofors case on March 4, 2011, Chief Metropolitan Magistrate Vinod Yadav concurred with the CBI’s contention that continuing proceedings against Quattrocchi would be a waste of money. He recited the iconic line from the song – “Woh afsana jise anjam tak lana na ho mumkin, use ek khoobsurat mor dekar chhorna hi achha.” The couplet was quoted in relation to the situation the case found itself in: It’s better to put an end to a story on a good note if it cannot be taken to a logical conclusion.

The Magistrate also cited a passage written by an author regarding the prevailing condition in a village in Amravati district in Maharashtra to say that the common man was not concerned at all about the high-profile cases.

If Bob Dylan is among the most quoted artists abroad, Sahir Ludhianvi is in India. That is perhaps because Sahir was sensitive to the plight of the downtrodden. He wrote about both romance and revolution with a rare sensibility.

In the case of Budhadev Karmaskar vs State of West Bengal, on 14 February 2011 the Supreme Court bench of Justices Markandey Katju and Gyan Sudha Misra dismissed the appeal of a man, accused of murdering a sex worker.The Supreme Court suo moto converted the appeal into a public interest litigation on the rehabilitation of sex workers.

The Court stated that sex workers were also human beings, and no one had a right to assault or murder them. A person became a prostitute not because she enjoyed it but because of poverty. Society must have sympathy towards the sex workers and must not look down upon them. They were also entitled to a life of dignity in view of Article 21 of the Constitution.

The Court observed that the plight of prostitutes has been depicted by Sahir Ludhianvi in his poem ‘Chakle’ which has been sung in the Hindi film Pyasa ‘Jineh Naaz Hai Hind Par Wo Kahan Hain’ (simplified version of the verse ‘Sanaa Khvaan-e-Taqdiis-e-Mashriq Kahan Hain’).

https://www.youtube.com/watch?v=3ta4BmumQKc

The Supreme Court also made references to the novels and stories of Bengali writer Sharat Chandra Chattopadhyaya and mentioned that many prostitutes had been shown to be women of very high character, e.g., Rajyalakshmi in ‘Shrikant’, Chandramukhi in ‘Devdas’.

The Court also referred to the character Sonya Marmeladova in Dostoevsky’s novel ‘Crime and Punishment’. Sonya is depicted as a girl who sacrifices her body to earn bread for her impoverished family. Reference was also be made to Amrapali, who was a contemporary of Lord Buddha.

The Supreme Court order on 2^nd August 2011, in the same matter, dramatically begins with Ghalib’s:

“Pinha tha daam-e-sakht qareeb aashiyaan ke

Udhne hi na paaye the ki giraftaar hum hue”

Explaining the use of the couplet, Justice Katju, years later, said – “There are millions of sex workers in India, and these girls become prostitutes not because they enjoy the profession but due to abject poverty. So, I compared them to the young chick referred to by Ghalib which is caught in the hunter’s net even before it could make its first flight. Surely Ghalib could never have imagined that his sher could be given such a meaning.”

The Supreme Court also made a reference to Charles Dicken’s novel ‘Oliver Twist’, in which the sex worker Nancy is shown to be a girl of high character who sacrifices her life to save Oliver. The Court also stated that in Victor Hugo’s novel ‘Les Misérables’, Fantine sacrificed her hair and teeth to provide for her daughter Cosette. Martha in ‘David Copperfield’ was also depicted as a woman of noble heart.

In the same case, the Supreme Court order dated 24^th August 2011, begins with some stanzas of Sahir Ludhianvi’s ‘Chakle’, which were also mentioned in the earlier order.

In the case of Radha and Ors. vs State of U.P. And Ors. on 28th November 2002, Justice Katju made a similar observation and made the same references.

Wait, we are not over with Sahir Ludhianvi just yet.

Additional Sessions Judge Kamini Lau dismissed an appeal on 8^th October 2011, against an order acquitting a Delhi resident and three members of his family on a dowry harassment complaint filed by his wife in 1999 on the ground that her allegations did not find any independent corroboration. In the verdict, the court also gave a piece of advice to the wife, quoting Sahir Ludhianvi, that she should dissociate herself from sour relations rather than being revengeful. The court said: “Taarruf rog ho jaaye to usko bhoolna behtar; Taalluk bojh ban jaaye to usko todna achcha; Wo afsaana jise anjaam tak laana na ho mumkin; Use ek khoobsoorat mod dekar chhodna achcha.”

 “Not all relationships are successful. In fact, most relationships which appear to succeed are only based upon compromises. Let go the past which is painful since attaching yourself to it will only give pain and miseries and help none,” the court advised.
Which begs the question as to why the judges make references to songs, poets, and books in their judgments?

Judges do that to illustrate their reasoning, bridging the gap between laypersons and the judiciary and making the court’s work more accessible to the public. They refer to the musical and literary works to bridge an understanding gap. Of course, quotes are almost never used to decide cases, but they are used to help provide a degree of understanding of the analysis. When judges write a judgment, they not just writing it for the lawyers, but also writing it for the parties and for the public at large.

A song becomes quotable if the lyricist can take a concept and distill it into a short phrase that conveys the facts in a memorable and concise way. Sahir Ludhianvi is one example.

However, this referral needs to be very carefully used. Great care needs to be taken that the quoting is done in a way that fleshes out the legal analysis. The parties shouldn’t think that, by quoting a song, the judge is minimizing their case or making light of them.

The public perceives the law to be a dry subject and that judges lack emotion. Referencing allows judges to show that they are not disconnected from society. They try to convey to litigants that they don’t just issue rulings from some ivory tower, but that indeed they watch TV, read books, and listen to music as anyone else does. So, when judges make rulings, they are ruling from the same world that the litigants live in. To bring them closer to humanity, to create that sense of compassion, judges find it a good idea to quote a relevant couplet or a song to drive home the legal point.

However, care needs to be taken that lyrics are only used if  it is appropriate to the situation, otherwise it might create unnecessary confusions in the mind of people. Philosophical couplets especially in Urdu can be interpreted differently by different people. Writing Urdu couplets in a judgment raises responsibility for the judges.

Why Urdu?

Many judges have a fascination for the Urdu language. Even today, terms like ‘Vakalatnama’ (authority given by a litigant to his lawyer in writing), ‘Dafa’ (Section), ‘Halafnama’ (Affidavit) and ‘Banam’ (versus) are still in use in courts.

It is interesting to note that Urdu is not solely found in judgments, but in courtroom proceedings as well between judges and lawyers.

There was an instance of an exchange in the courtroom of Justice T.S. Thakur, the then judge of the Delhi High Court, and Najmi Waziri, then a lawyer, now a judge of Delhi High Court. After the conclusion of the matter, Justice Thakur gave a long date and was rising for lunch. However, Waziri needed a shorter date in the matter. Justice Thakur had almost left the courtroom when Waziri recited a line of Ghalib – “Kaun jeeta hai teri zulf ke sar hone tak.” The Justice came back to his seat and said, “Pehla misra parhiye zara.” Waziri recited “Aah ko chaahiye ik umr asar hone tak.” Justice Thakur was so impressed that he gave him a date in the next week.

Among the judges, Justice Katju was famous for making it a point to either open a judgment with an Urdu couplet or state one in his judgments. In the case of Gopal Das thru Anand Vir vs. Union of India , delivering a judgment on 14^th March,2011, on a petition filed by a brother of one Gopal Dass, who was illegally detained by Pakistan in the Lahore Central Jail, Justice Katju started the ruling with a couplet by Faiz Ahmed Faiz –“ Qafas udaas hai yaaron, sabaa se kuchh to kaho, Kaheen toh beher-e-khuda aaj zikr-e-yaar chale” from his famous ghazal ‘Gulon Mein Rang Bhare, Baad-e-Naubahaar Chale’ . He also quoted Portia’s speech on mercy in Shakespeare’s ‘Merchant of Venice.’

In the case of Aruna Ramchandra Shanbaug vs Union of India & Ors on 7 March 2011, Justice Katju quoted Ghalib while delivering judgment in the Aruna Shanbaug mercy killing case – “Marte hain aarzoo mein marne ki, Maut aati hai par nahin aati “. Shanbaug, a nurse at Mumbai’s King Edward Memorial Hospital who was sexually assaulted in 1973 by a hospital staff, had been in a vegetative state for 37 years. To convey a sense of pain and agony Shanbaug went through all these years, Justice Katju quoted Ghalib in his judgment.

On 10^th March 2018, when the Supreme Court recognized the right to passive euthanasia for the terminally ill, the judgement included lines from the Amitabh Bachchan film and song ‘Muqaddar ka Sikandar’ (1978): “Rote hue aate hain sab, hasta hua jo jayega/Woh muqaddar ka Sikandar jaaneman kehlayega.” Shakespeare and Plato were also referred to.

On 7^th February 2018, a judgment was passed by the Kerala High Court in the case of a divorced woman and a mother of a five-year-old child who had filed a petition after her child was taken away by her in-laws in her absence. Justice Chitambaresh opened the judgment with the lyrics of a song from a Tamil movie ‘Mannan’- “Amma endrazhaikatha uyir illaiye Ammavai vanangatha uyir illaiye” (There is no life form which does not call for its mother, there is no life form which does not respect its mother).

Apart from Urdu couplets, judges incorporate, as noted earlier, works of writers in their judgments. In 2003, hearing an appeal of a lawyer over alleged professional misconduct with his client, the judges added humour in the ruling, citing a line from Shakespeare’s ‘Henry VI’ – “The first thing we should do is let us kill all the lawyers.”

Similarly, lyrics from a Bob Dylan song featured during the Kerala High Court proceedings when Justice Dama Seshadri Naidu quoted “The times they are a-changing.”

The Special Court at Delhi , on 12^th May, 2022 , while denying bail to Chitra Ramkrishna , the former CEO and MD of the NSE said, “It appears that accused Chitra Ramkrishna prima facie seems to have been running the affairs of NSE akin to that of a private club; singer writer, Nobel Laureate Bob Dylan once said “money doesn’t talk, it swears”, which is a song of the 1964  album ‘It’s Alright Ma I’m Only Bleeding’. It means that money not only has influence, but it has great influence, even a perverse influence on people.”

In a historic judgment on 6^th September ,2018, the 5-judge Constitution Bench of the Supreme Court announced the strike down of the 158-year-old Section 377 of the Indian Penal Code that criminalized homosexuality. The verdict, which ran into 493 pages, borrowed heavily from English literature.

“I am what I am, so take me as I am”- is how CJI Dipak Misra began pronouncing the judgment, quoting Goethe. This was immediately followed by a statement from another German philosopher Arthur Schopenhauer: “No one can escape from their individuality.”

To emphasize on the significance of individuality, CJI Misra borrowed John Stuart Mill’s statement: “But society has now fairly got the better of individuality; and the danger which threatens human nature is not the excess, but the deficiency of personal impulses and preferences.” 

Further, the Supreme Court, at different instances, quoted lavishly from Shakespeare. Stressing on the importance of identity, the judgment sought the help from the play ‘Romeo and Juliet’: “What ‘s in a name? That which we call a rose by any other name would smell as sweet.”

Stating that Indian constitution is built on the fundamental rights, the Supreme Court said: “The fundamental rights chapter is like the north star in the universe of constitutionalism in India.” The ‘north star’ was in reference to Shakespeare’s ‘Julius Caesar.’

Later in the order, the Supreme Court narrated an incident from Oscar Wilde’s life, when the latter was prosecuted for homosexuality.

While reading out the judgment, Justice Dr Dhananjaya Y Chandrachud quoted Leonard Cohen’s ‘Democracy’ from the album ‘The Future’ (1992):

“It’s coming through a hole in the air,

…

It’s coming from the feel

that this ain’t exactly real,

or it’s real, but it ain’t exactly there.

From the wars against disorder,

from the sirens night and day,

from the fires of the homeless,

from the ashes of the gay:

Democracy is coming…”

The judgement didn’t go unappreciated in the music world. YouTuber Poojan Sahil came up with a parody video of the song ‘Pyaar Kar’ from the 1997 movie ‘Dil Toh Pagal Hai’.  The song titled ‘Pyaar Kar: The 377 Song’ is a melodious ode to the landmark judgement.

The short parody video altered the lyrics of the original song with words like “Ancient jo tark tha, ek number ka jerk tha, Kehta Teen-Sau-Satatar — Pyaar Kar.”

Poojan also paid tribute to the Supreme Court judges in the song with the lyrics- “SC ne bhi kaha, dillagi ki na denge saza, Befikr, thukra ke darr — Pyaar Kar.”

In the case of Kanhaiya Kumar v. State of NCT of Delhi, the Delhi High Court while granting bail to him, made critical observations on the people who indulged in the alleged sloganeering. The order dated 2^nd March,2016 began by quoting the song ‘Mere Desh Ki Dharti’ from Manoj Kumar’s ‘Upkar’(1967)to describe the love for motherland. It read: “This patriotic song from Upkaar by Lyricist Indeevar symbolizes individual characteristics represented by different colors and love for motherland.”

On 11^th September 2014, the Delhi High Court dismissed a petition seeking a ban on the theatre release of ‘Finding Fanny’. The ban on the film was sought on the ground that the word ‘Fanny’would hurt the feelings of citizens of India especially immature brain of minor children. The court disagreed with the petitioners and cited other examples where the word ‘Fanny’had been used, such as Fanny Price (in Jane Austen’s novel Mansfield Park), and Aunt Fanny (in Enid Blyton’s The Famous Five). It went on to mention the film ‘King Uncle’(1993) in which Anu Agarwal’s character was named Fenni. The order said, “In the Hindi movie, King Uncle, released in the year 1993, the name of the lead female character was Fenni Fernando pronounced as Fanny only and the said movie also had a song with the lines of ‘Fenni Ne Mujhe Bulaya’. It is, thus, not as if the Indian movie viewers would be exposed to the name Fanny for the first time.”

Sometimes, film songs get sung during court proceedings. On 2^nd June 2021, the Delhi High Court’s virtual hearing of a plea filed by actor Juhi Chawla against the rollout of 5G technology was disrupted when an unidentified person kept singing songs from her movies during the proceedings.

Soon after Juhi joined the virtual hearing, the individual started humming “Ghoonghat ki aad se dilbar ka…” song from the actor’s 1993 movie ‘Hum Hain Rahi Pyar Ke’. Despite the uproar, Juhi’s fan remained undeterred and proceeded to sing other songs from her films like “Laal laal hoton pe gori kiska naam hai” and “Meri banno ki ayegi baarat.” Justice JR Midha then got agitated, asked to mute the audio feed, and issued a contempt notice.

A reference to the Game of Thrones was made by the Special Judge (PC) (CBI), Delhi District Court, Tis Hazari. In the judgement dated July 9, 2018, regarding the infamous Urea Scam Case, the Judge observed:

“‘Winter Is Coming’ happened to be the motto of House Stark of Westeros in Game of Thrones, such phrase has been used by both the Turkish accused incessantly after inking the contract. It actually meant, in the serial, that the difficult times were coming ahead and thereby alerted everyone to be constantly vigilant. Such meaning is in conformity in the present context as well. “

For good measure, the Judge alluded to the Turkish proverb – ‘Ruzgar eken firtina bicer,’ which meant that one who sows wind will reap whirlwind. He stated that it fitted aptly for both.

Not only do judges quote film songs in their judgments, but some of them also shed their traditional reserve and reveal their musical sides. On 27^th August 2018, two Supreme Court judges—Justice Kurian Joseph and Justice KM Joseph—both Malayalis, sang at cultural programmes conducted by journalists covering the apex court in Delhi to raise money for Kerala for relief and rehabilitation following the recent floods. The audience that included the Chief Justice of India.

While Justice KM Joseph sang a song from the classic Malayalam movie ‘Amaram,’ chronicling the tale of fishermen, and a Hindi song, Justice Kurian Joseph went mainstream and performed ‘We Shall Overcome’ alongside singer Mohit Chauhan.

“Fishermen were the first to react when the state was reeling under severe floods. This song is a tribute to them,” said Justice KM Joseph.

If the judges can quote film songs, its par for the course that film songs also feature the theme of law and justice.

The song.’ Insaaf Ki Kursi’ is one such from the 1983 movie Justice Chaudhury.

“Insaaf ki kursi pe pehale/ Tum khud ko bithaao
Maine galat kya kiya hai/ Mujhe phir bataao
Aansu bahaake mujhe/ Tum na doshi banaao
Yeh mera nahi, insaaf ka faisala hai
Insaaf ka faisala, bhagwaan ka faisala.”

Another 1983 film ‘Andhaa Kanoon’ had a song ‘Yeh Andhaa Kanoon Hai’:

“Yeh andha kanoon hai

Jaane kahan daga de de/ Jaane kise saza de de

Saath na de kamzoron ka/ Yeh sathi hai choron ka

Baaton aur daleelon ka/ Yeh hai khel wakeelon ka

Yeh insaf nahi karta/ Kisi ko maaf nahi karta

Maaf ise har khoon hai”

Hard hitting words. But if film songs can bridge the perception gap between the judge and the common man, then it’s a worthwhile