[Reader-list] Devastating Looks: Smirks, Quirks and Judicial Authority

[Lawrence Liang]

Some more private love notes on my ongoing affair with the judiciary *

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 
bumpkin, and the pleasure of the tale is derived from the underdog 
illiterate 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 
learn 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 risers 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 ad 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).