Scene III of Act III of Merchant of Venice opens with Shylock exclaiming: “I’ll have my bond; speak not against my bond; I have sworn an oath that I will have my bond.” These very lines are quoted by the Indian Supreme Court's Justice Hrishikesh Roy in the judgment of Small Industries Development Bank of India (SIDBI) v. SIBCO Investment Private Ltd (2022) while rejecting an “unjust claim” of SIDBI seeking interest on belated payment of the principal sum and accrued interest.
How and where do law, morality and Shakespeare intersect? Law being an ass, as it was described by Charles Dickens in Oliver Twist, where is the place of literature in it? And yet we find legal judgments in India and abroad peppered with references from literature, and particularly from Shakespeare’s plays.
While many perceive that law is codification of accepted morality in society, others like the former United States Supreme Court Justice Oliver Wendell Holmes, Jr consider it a folly to connect law exclusively to morality. Justice Holmes argued in his speech delivered at the Boston University in 1897, which was later published in the Harvard Law Review under the title The Path of the Law, that social behaviour was not prompted by morality, but by self-interest. Thus evolved the homo economicus, the economic man.
For the homo economicus, it is more important to know the consequences of actions, than to ponder over the motivation for proscription of behaviours. Since a person’s behaviour will be guided by the cost he pays for contravention, clarity of laws is essential. However, since law cannot provide for all situations, it always requires interpretation and reinterpretation of its letter. It is here that morality and good conscience assumes the high order of significance. The predicaments facing judges are similar to those faced by characters of plays.
Take for example the Supreme Court Advocates-on-Record Association (1993) case calling for a review of the SP Gupta (1981) case regarding the primacy of the Chief Justice of India's view in the matter of appointment of judges to the constitutional courts. Justice Ratnavel Pandian, in his concurring opinion, vexed with the question as to who the letter of the Constitution clothes with primacy during the consultation process, quotes Shylock’s lines in Merchant of Venice, “A Daniel come to judgement! Yea, a Daniel.” These lines are alluded to by the judge to help them reach a wise judgment by a wise judge, just as Shylock beseeched Portia to do so.
Former Chief Justice of India HL Dattu also made reference to the famous lines of Luciana in Shakespeare’s Comedy of Errors that “A man is master of his liberty” while interpreting the width of personal liberty in conflict with preventive detention laws. Guided by these social references, the judges in their opinion in the case of Pebam Ningol Mikoi Devi (2010) interpreted the law of preventive detention to exclude curtailment of personal liberty on grounds extraneous to the object of the Act in question.
The jacket describing the book Cultivating Conscience: How Good Laws Make Good People by Lynn Stout, who served as a professor of law at UCLA School of Law and Georgetown University, states:
“Stout illustrates how our legal system can use these social cues to craft better laws that encourage more unselfish, ethical behaviour in many realms, including politics and business.”
The core of her book rests on the thesis that the conscience of the law makers, interpreters and subjects of law shapes better societies.
The letter of law many a time poses dilemmas in its application to complex situations. The Indian Constitution uses the phrase “in the interest of public order, decency or morality”, specially in Part III, while imposing reasonable restrictions on fundamental freedoms. The unwritten common law, a guiding light for Indian courts, also encourages judges to give judgments in accordance with “justice, equity, and good conscience”.
The letter of law can never be exhaustive, and it is left to the devices of the judges interpreting it to make just results. It is thus the astuteness of a judge, tempered by his legal and social experience, that can draw out the unstated nuances of the law. Given the ass that law is, the application of standards of morality and good conscience found in social references are useful, and usually result in more just decisions.
Vibha Datta Makhija is a Senior Advocate practicing at the Supreme Court of India.