In an article titled 

Death and the Sovereign  Pratap Bhanu Mehta has an

important critique of the Rajasthan High Court’s Santhara judgment. He
argues that legal categories such as “suicide” and “attempted suicide” are
insufficient and inaccurate descriptions for understanding the range and
complexity of religious practices, as well as the meaning and significance they
carry for their adherents.
Mehta’s argument echoes in a way the mechanism of power in the act of
representation, especially when representation is made by the state
institutions of the populous and the riff raff . Edward Said wrote about
in Culture and Imperialism: that representation is an act of power, and one
way to recognize an unequal relationship is by observing how it acts to
silence, exclude and marginalize the experiences of the subjects of
representation. Said writes:

“Power even in casual conversation to represent what is beyond metropolitan

borders derives from the power of an imperial society, and that power takes the
discursive form of a reshaping or reordering of ‘raw’ or primitive data into the
local conventions of European narrative and formal utterance, or in the case of
France, the systematic of disciplinary order. And these were under no obligation
to please or persuade a ‘native’ African, Indian, or Islamic audience: indeed, they
were in most influential instances premised upon the silence of the native. When
it came to what lay beyond metropolitan Europe, the arts and the disciplines of
representation – on the one hand, ficton, history and travel writing, philology,
racial theory – depended on the powers of Europe to bring the non-European
world into representations, the better to be able to see it, to master it, and, above
all, to hold it.”

Said’s point resonates. In the Santhara judgment, the Rajasthan High Court
takes the “raw” or “primitive” data (i.e., the fact that some Jains are
undergoing a fast unto death). The Court shoehorns it into the “local
conventions” of legal “narrative and formal utterance” (which can equally well
be classified as a disciplinary order), i.e., the prohibition against abetment to
“suicide”. This, of course, is premised upon the “silence of the… [Jains]”. The
questions whether they regard it as “suicide”, and whether there a divergence
between how they experience Santhara, and how the law understands suicide,
are not addressed.
In a similar vein, Alessandro Portelli, the oral legal historian, writes about the
anatomy of an Italian terror trial in the 1970s. In defining a political
movement as a criminal conspiracy, Portelli argues that “the magistrates were
thus involved in reconstructing the past, redefining its meaning, and attempting
an overall interpretation. These are historical tasks, and it is appropriate to
examine the way they were performed from the point of view of the theory and
method of history, oral history specifically, given the nature of most sources
used.” A trial, according to Portelli, always involves reconstructing (or
constructing history), through documents and – where there are gaps in the
documents – through oral testimonies. This, of course, is another form of
representation, and another form of power: through its final judgment, the
Court will declare one version of history to be true, which may well be
contrary to the experiences of its participants (note, for instance: any finding
of guilt must, by necessity, affix whole and complete responsibility upon
individuals, rather than structural or social causes. Portelli extracts the
evidence of a prosecution witness, before observing that “prosecution witness
Romito favors political over social history: mass struggles or insurrections do
not depend upon the masses or on broad social causes, but on the secret dealings
of leaders whose influence on the working class was never more than marginal
anyway.”)
The judge’s task, therefore, repeatedly requires her to answer questions that
are centrally anthropological (what is the character of Santhara?) or historical
(what was the cause of the terror attack?), without obligating her to adhere to
the rigorous standards of method and scholarship required of an
anthropologist or a historian. Paradoxically, however, the judge has
far more power than the anthropologist or historian. While the latter’s
conclusions are provisional, tentative and always open, the judge’s findings
assume the crystalline immutability of “judicial truth” one they are ensconced
in a judgment. More than that, of course, they have very real consequences. As
Robert Cover points out, “legal interpretation takes place in a field of pain and
death.” In the Santhara case, that is literally true.

All this points to an urgent need for judicial humility. Hard questions should
be approached with an awareness of the judge’s privileged subject position,
the power that she wields to impose a representation of the “truth”, the
further power to convert that representation into actual facts on the ground,
and the consequent need to be wary of sweeping, assured positions. True
“demos prudence” would require the judge to listen to the experiences of
those who will soon be represented in judgments, especially when their
experiences seem not to fit easily into pre-defined, a priori, universalizing
legal categories. It is a trait that, as Mehta points out, is unfortunately
completely missing in the Rajasthan High Court’s judgment.
Judicial humility, I suspect, will be a recurring theme when the historians of
the future, finally unshackled by contempt of court laws, sit down to write the
history of the present Court. In particular, I think they will marvel at how
easily our judges liberated themselves from the gravitational pull of doubt,
which keeps most of us earthbound, and escaped into the stratosphere of
diamond-bright moral certainty. Recently, in confirming a death sentence
(Edit: V. Venkatesan has kindly pointed out that it was an abetment to suicide
case, and not a death penalty confirmation. My thanks to Mr. Venkatesan),
Justice Dipak Misra stated that judges have a duty to respond to the “collective
cry of society”. We have heard such words before – in the mouths of prophets
and madmen, who have considered themselves to have privileged communion
with the Voice of God (vox dei or vox populi, the clarity of the moral vision
never dulls). Prophets and madmen, however, have no need of explaining
themselves. Judges do, because they live under the Constitution, like the rest
of us, and have as much a duty of fidelity to the Constitution as the rest of us
do.
What is the collective? How can you know that there is only one collective,
which speaks with one voice (one “cry”)? How can you know that the
collective is right? And above all else, how can you be so sure that you, among
all citizens, have correctly heard and interpreted this “collective cry”? Such
pretensions would provoke laughter, did they not have such real and tragic
consequences.
Almost five hundred years ago, Oliver Cromwell wrote to the synod of the
Church of Scotland, stating thus: “I beseech you… think it possible that you
might be mistaken.” It is a plea that one may wish would be heard by the
present judges of the Court.