A pilgrim's progress

Reflections on the law school journey

2024 marks a significant year in my life’s calendar. It is the year of my graduation from law school. It is the year when I will complete my pilgrim’s progress. When the senior Chandrachud shifted sides from the minority against the basic structure doctrine (“BSD”) in Kesavananda to the majority affirming it in Minerva Mills - constitutional stalwart Upendra Baxi termed it as a pilgrim’s progress. Why is it the pilgrim’s progress? Because for the senior Chandrachud, to articulate two different strands of reasoning, and to reach two polar opposite conclusions is similar to an atheist’s sudden affection for God (in this situation, denial of the BSD in Kesavanada and then affection for the BSD in Minerva Mills). With the obvious caveat that I do not consider myself worthy, yet, of being compared to the former Chief Justice of India, this opening paragraph is intended to pay a living homage to his son and the present CJI. Justice DY Chandrachud, drew from Ulysses while writing the opening paragraph in the Supreme Court’s group of companies doctrine judgment, to say that the doctrine has elicited both criticism and applause similar to Ulysses. Elijah Granets terms this as an example of how “not to open a judgment”. Because (i) this is an attempt to show the judges’ prowess in literature in an exercise that requires mere articulation of the legal principles of the doctrine and more consequentially (ii) the show of prowess does not serve the rationale or ratio of the case. I have done something similar by calling my graduation a pilgrim’s progress. The other intended consequence of using this opening paragraph and bringing attention to Granet’s criticism of CJI DYC’s Ulysses simile will emerge with clarity as I write ahead.

I entered law school in 2019. All that I knew about law school back then was that there was a firm called Pearson Spector Litt in the United States that hired a lad who was about-to-be caught in a narcotics case as a hotshot corporate lawyer. A strange fiction that replays itself as reality across law schools each year. Anyways, coming back to the pilgrim’s progress. I will use three threads to tie this progress together. Firstly, my expectations when I started this journey in 2019. Secondly, my conclusions about this journey in 2024 as I graduate. And finally, a call for reflection for the future pilgrims.

The graveyard of expectations

I have a blurred memory of my expectations from law school because they lie buried in the graveyard of hope. But with utmost brevity to take care of the soul of these expectations, I had expected (i) a peer group that would be the creme de la creme of the future legal minds (ii) rigorous engagement with legal thought building (iii) creative autonomy over legal discourse.

Let me dissect each of these in my conclusions about the pilgrim’s progress.

Reticent conclusions

Reticent, because a lot of conclusions are drawn from events that deserve more silence than articulation, yet I will try my best to explain them in the abstract and reserve my memory for a time and place when words will fill in for the reticence.

On (iii) creative autonomy over legal discourse

What is creative autonomy over legal discourse? Or to take a step back, what exactly is discourse or legal discourse? The legal profession is a natural situs for discourse. Any legal case is hyphenated by a versus - judges reach a conclusion by hearing a contested discourse between two parties. Thus, there is a natural expectation that students of law should be well conversant with the idea of a discourse. A discourse needs the light of both appreciation and criticism. It cannot be shadowed only under the burden of appreciation - of events and memoirs where paeans are sung about judges who wield and exercise powers - under the limits of the constitution. And that as students of law, each opportunity to engage with them should precede with a question of doubt about how they have exercised the power. That is creative autonomy over legal discourse. And this is missing in the Indian law school discourse. We are instead, taught to believe in the grammar of garlandism. Garlandism is the culture of restricting our ability to ask pertinent questions to being mere carriers of bouquets and mementos. And even when questions are asked, they intend to serve the platitudes of the judges’ glory, or a possible aberration in a string of bad civil rights judgments. While I do not intend to say that judges should not be respected or held in dignity - that is something that the Constitution has enshrined upon them through express powers of judicial review through which they act as guarantors of fundamental rights. However, equally strenuous is the burden on the law school community to hold them accountable on the touchstone of the Constitution through legal discourse. However, legal discourse has surrendered to garlandism. Garlandism would mean clapping at DYC’s use of the simile of the Ulysses, opposed to that is the creative autonomy over legal discourse which Granets exercises by asking the right question - how does using the Ulysses simile help a reader who wants to understand the group of companies doctrine?

On (ii) rigorous engagement with legal thought building

Legal thought building means reading a judgment from a critical lens and using spaces of legal discourse such as autonomous or institutional societies within law school to debate them. This can be achieved through (i) classroom interaction between a student and the professor, or (ii) a student and student interaction through societies. Classroom interactions rarely contribute to legal thought building as they mostly serve as communicating the verbatim language of the judgements. The interaction is limited to the iteration of legal facts and not discordant notes from and about the judgment. Let me use an example here. What we learn in the classroom is that the basic structure doctrine evolved in the Kesavanada case. What we often miss is the what question. What forced the Court to reason the way it did in Kesavananda? Did the First Amendment reinvent the shackles of colonial continuity in the Constitution? What is the relationship between the judiciary and the government? What happens when the Parliament reaches the epoch of its power in a constitutionally limited State? All of these questions require engagement with the politics of law. I am reminded of this evocative sentence that Nandini Ramachandran wrote in her piece: law cannot clarify what politics refuses to resolve. But our classrooms apply the doctrine of untouchability of judicial review of political questions more often than the courts. The impact then falls onto autonomous or individual societies where students know the language of the judgment but refrain from the art of legal thought building as the bricks for that were never laid in the classroom.

On (i) a peer group that would be creme de la creme of the future legal minds

There is a reason that I numbered this statement as (i) and then explained this at the last. While this was a naturally top-numbered expectation when I entered law school but as it is a consequence of (ii) and (iii), I explain it at the end. When there is no creative autonomy over legal discourse and no rigorous engagement with legal thought building, a peer group which might have been creme de la creme as an output of the law school entrance test, tends to fade away in that memory. Eventually, it is individuals who replace the idea of peers.

A call for reflection for future pilgrims

I stand at the last footstep of my pilgrimage, a few months away from graduation. This post is intended to serve both as a note of reflection for my own journey and for those who are already embarking on this journey, or will embark on this journey in the future. The legal profession is in all senses a pilgrim’s progress. The senior Chandrachud spent close to a decade reaching a different conclusion about the application of a doctrine that serves as the protector of our constitutional ethos. This required an acute diagnosis of everything that must have shaped his opinion of the intention of the founding fathers and mothers of the Constitution. As the future of this nation’s legal culture - it is also our burden to preserve the culture of legal discourse and thought-building. It will be a tragedy if we dispense with this burden with garlandism and verbatimsm.