The lone tree on the bare hillside

Children of a lesser God

“I found Him in the shining of the stars,

I mark’d Him in the flowering of His fields,

But in His ways with men I find Him not.

I waged His wars, and now I pass and die.

O me! for why is all around us here

As if some lesser god had made the world,

But had not force to shape it as he would,

Till the High God behold it from beyond,

And enter it, and make it beautiful?”

The above lament of the fabled King Arthur is a centrepiece of the poet Alfred Tennyson’s celebrated work ‘Idylls of the King’. Inspired by this reference to a world which, with its various imperfections, appears to be the creation of a lesser being, Mark Medoff’s 1980 Broadway play, captivatingly titled ‘Children of a Lesser God’, explores the tribulations and tragedies of its main characters. This seemingly irrelevant piece of trivia is of some relevance here because the phrase “children of a lesser God”, and the concern for the underprivileged and the beleaguered that undergirds it, has been a recurring motif in Justice Rajiv Shakdher’s judgments over the years.

In Govt School Teachers Association (Migrants) Regd. & Ors. v. Union of India & Ors., while directing the regularization of government schoolteachers from the Kashmiri pandit community, who were forced to relocate to Delhi in the 1980s following the violence and upheaval in the valley, Justice Shakdher begins his exposition with the following evocative passages:  

“1. The petitioners before me appear to be children of a lesser God. Their mass exodus in 1989, on account of threat to life and liberty caused them, to move to Delhi. The Government of the day facilitated their movement. The scale of the problem was huge. Makeshift camps were set up in the Jammu and Delhi and in other neighbouring States.

2. … A very proud set of people were made to ask and survive on State dole. Persons who were kings, in a manner of speech, in their own houses were overnight turned into paupers. It is a story of riches to rags.”

In Deepak & Anr. v. Central Board of Secondary Education, while permitting the petitioners to replace, on their school-leaving certificates, the name of the orphanage where they were raised with the names of their choosing, Justice Shakdher remarks, 

“1. The petitioners before me are young persons who were aged between 19 years to 22 years when they first approached the court. At birth, they were abandoned and forsaken. They were children of "lesser God". Their fate, or call it a chance, allowed them to be housed in a safe and secure environment provided by Udayan Care Home. The petitioners, in my view, are entitled to reclaim their individuality and identity by insisting on inclusion in their grade-X and grade-XII certificates, the name by which they wish to be known.”

Even in judgments where the phrase does not find explicit mention, Justice Shakdher’s reasoning resonates with King Arthur’s lament, before proceeding to wield the Constitution as a veritable Excalibur. In a decision that fundamentally reshaped the institution of law clerks in the Supreme Court, Justice Shakdher in Phaguni Nilesh Lal v. The Registrar General, Supreme Court of India overturned the prevailing practice of permitting applications for the position of a clerk only from graduates of certain empanelled law schools. While excoriating the extant policy, Justice Shakdher’s reasoning rages against the exclusionary and privileged backdrop within which it operated. He holds,

“14.6 … To contend that it is only such Institutes which produce students imbued with talent, ethicality, discipline and morality, is not based on any empirical data. While the probability of Institutes of excellence producing first rate students is high, it cannot exclude the possibility of several jewels (metaphorically speaking) being hidden in Law Colleges situate in remote parts of the country.

17…Call it scheme or policy or eligibility criteria empanelment of Institutes in the present form leads to an invidious classification, which brackets a set of Institutes and consequently its alumni, into privileged category based on indiscernible and unintelligible criteria. If the object sought to be achieved is to render assistance to the Judges of the Court and initiate Law Clerk-cum-Research Assistants (LCRAs) to the judicial system and its processes, it fails on both counts. By keeping a large section of both, meritorious and needy Law graduates out of the fray or zone of consideration, the stated policy, in my view, attains an element of discordance qua its articulated object. When, the purported policy articulates that it wants to ensure that selected LCRAs render assistance to the Judges; I would imagine that the Supreme Court would want to induct the best and the brightest minds and expose them to its workings and complexities, and while doing so, keep room for those who are sociologically and economically deprived, and educationally handicapped, due to absence of requisite facilities in their respective alma maters. The scheme and/or the policy achieves neither.”

The Excalibur in question was also extensively deployed in Priya Parameswaran Pillai v. Union of India and Ors., where, while overturning an executive decision to deplane a civil rights activist and prevent her from travelling abroad, Justice Shakdher draws a clear red line around individual liberty and freedom of expression, when he holds,

“13.4 …The point in issue is, why must the State interfere with the freedom of an individual, as long as the individual concerned operates within the ambit of laws framed by the legislature. The core aspect of democracy is the freedom of an individual to be able to freely operate, within the framework of the laws enacted by the Parliament. The individual should be able to order his or her life any way he or she pleases, as long as it is not violative of the law or constitutes an infraction of any order or direction of a duly constituted court, tribunal or any statutory authority for that matter. Amongst the varied freedoms conferred on an individual (i.e., the citizen), is the right of free speech and expression, which necessarily includes the right to criticise and dissent. Criticism, by an individual, may not be palatable; even so, it cannot be muzzled. Many civil right activists believe that they have the right, as citizens, to bring to the notice of the State the incongruity in the developmental policies of the State. The State may not accept the views of the civil right activists, but that by itself, cannot be a good enough reason to do away with dissent.

Even more sapiently, Justice Shakdher proceeds to roundly reject the argument espoused before him that the impugned action in that case was justified on account of the purported ‘anti-national’ views held by the aggrieved individual in the following words:

“15.3 In respect of each of these attributes of nationhood, there may be disparate views amongst persons who form the nation. The diversity of views may relate to, not only, the static symbols, such as, the National Flag and National anthem, etc. but may also pertain to the tradition and heritage of the Nation and the manner in which they are to be taken forward. Contrarian views held by a section of people on these aspects cannot be used to describe such section or class of people as anti-national. Belligerence of views on nationalism can often lead to jingoism. There is a fine but distinct line dividing the two. Either way, views held, by any section or class of people, by itself, cannot be characterized as anti-national activities.”

While these decisions are but a blip on the radar in a long judicial career spanning over sixteen years as a High Court Judge, they embody the themes of enduring empathy, compassion, and a steadfast guardianship of Constitutional promises, which have been the hallmark of Justice Shakdher’s judicial contributions on the bench.

Justice Shakdher’s demeanour in Court mirrored his judicial mind. Aside from an innate intelligence, and the solid grounding in commercial and Constitutional law, that he brought to the court proceedings, Justice Shakdher was ever conscious of the disparate power dynamics at play in the cases before him. In his farewell address on the eve of his elevation as Chief Justice of the High Court of Himachal Pradesh, he recalled that after qualifying as a chartered accountant, the perceived monotony of reconciling accounts and drawing up balance sheets inspired him to pursue a career in law instead. But as a judge, Justice Shakdher subconsciously continued with this arduous task of reconciling and balancing the vastly unequal litigants and their correspondingly unequal lawyers, who appeared in his courtroom every day, all in the ultimate pursuit of a fair outcome. 

While all lawyers were afforded a patient hearing in his courtroom, Justice Shakdher was particularly encouraging of young lawyers. During the later part of the day in Justice Shakdher’s court, when the final hearing matters were called out, there were occasions when he would politely inform senior counsels that he would listen to their matters later, point to young advocates waiting in this courtroom and ask them to step forward so their cases could be heard first. On many of these occasions, Justice Shakdher would remark that he had noted that the concerned young lawyer had not been able to receive an audience in his court for quite some time, and that the situation needed to be remedied.

In our country, the Attorney General for India enjoys the right of pre-audience over all other advocates, but in Justice Shakdher’s court, merely being a young, witless human being in a black coat and a white band was enough to earn you that privilege. Even when on occasion he was annoyed by a lack of preparation or a flippant attitude, he would deliver a quick rap on the knuckles but ultimately let the young you off with a smile. He would always make it a point to remind you of the crucial role you discharged as an advocate and the rich heritage of the profession you had inherited and were sworn to uphold. On a lighter note, this last predilection once led Justice Shakdher into a spot of innocent, mirth-inducing bother with a doyen of the bar—though that story is best reserved for later in this piece.

Although celebrated for different reasons, one of the most powerfully understated depictions of empathy in a judicial setting can be found in Leo Tolstoy’s ‘The death of Ivan Ilyich’. The novella traces the story of Ivan Ilyich, a High Court judge in 19^th-century Russia, who is rising quickly through the ranks when he is suddenly confronted with the onset of a debilitating disease. A major part of the novella thereafter documents Ilyich’s agonizing descent into despondency and despair, and the overwhelming physical pain, personal disappointments, and social isolation that he endures on account of his illness. By the time of his untimely death from the disease, Ilyich has become a man transformed, filled with empathy and compassion, a stark contrast to his former self, which was driven entirely by self-interest. The novella includes several portions documenting Ilyich’s encounters with the doctors treating him—fictionalized exchanges that continue to rile medical practitioners to this day for what they consider an unfair portrayal of their profession. In one such encounter, after recounting the aloofness and lack of empathy shown by Ilyich’s doctor, and the flippant, dismissive manner in which Ilyich’s concerns are brushed aside, the narrator notes in a sardonic tone that “…all this was point for point identical with what Ivan Ilyitch had himself done in brilliant fashion a thousand times over in dealing with some man on his trial. Just as brilliantly the doctor made his summing-up, and triumphantly, gaily even, glanced over his spectacles at the prisoner in the dock.”   

In Judge Ilyich’s case, it was the turmoil brought about by his illness that birthed empathy and compassion within him. In Justice Shakdher’s case, it was the other way around: Empathy, compassion, and the nuanced, albeit inconvenient, understanding of nationhood displayed in Priya Parameswaran Pillai culminated in an unceremonious transfer in March 2016. The transfer to the Madras High Court went ahead despite vociferous opposition from the bar[2], and as Justice Shakdher later revealed, in the face of lack of consent by him. Justice Shakhder would describe this transfer as one of life’s surprises that had hurt him.

A few months after the transfer had been given effect to, I had the occasion to appear before the High Court of Madras. As the bench I was slated to appear before did not assemble, I had the whole day ahead of me before the flight back home in the evening. I decided to walk over to Justice Shakdher’s courtroom, where he was heading a division bench. For the better part of the day that I spent in the courtroom, Justice Shakdher was very much in his element. Any feeling of hurt seemed to have been forgotten, or at least completely suppressed, in the face of the call of duty. Justice Shakdher had already established a connection with the Chennai bar, and the camaraderie and solemnity of the proceedings mirrored that of his courtroom in Delhi. It was not the elegiac atmosphere I had feared I might witness. The bar reciprocated with affection and admiration for the judge, who had but recently joined the ranks of their court from halfway across the country. As I flew back that evening, the feeling was bittersweet. It was heartening to see Justice Shakdher thriving in his new surroundings, but the feeling of the loss of an outstanding judge from one’s parent High Court had only been reinforced.

In a welcome twist of fate, news broke of Justice Shakdher being transferred back to the High Court of Delhi in the early days of 2018. At his farewell at the High Court of Madras, while emphasising his fairness and courteousness, the proceedings echoed the loss that the Madras High Court was now facing with Justice Shakdher’s departure. Justice Shakdher, in turn, shared that he coped with the disruption and hurt brought about by his 2016 transfer by choosing to focus on the beauty and the goodness the world had to offer. He had found solace, as he put it, in Tamil Nadu’s rich culture—particularly its classical music and temple architecture—and the warmth of its people.

Justice Shakdher returned to the High Court of Delhi in January 2018. After his return, aside from his contributions on the judicial side, which continued thick and fast, Justice Shakdher also donned the hat of a transformative administrator. Of particular note is his pioneering work as Chairman of the Accessibility Committee of the High Court of Delhi. With his fellow judges, differently-abled advocates, and other stakeholders on the Committee, he implemented a wide range of measures to make the court system more accessible and user-friendly for differently-abled advocates and litigants. These measures, which are far too many to document here adequately, included conducting physical and website accessibility audits, ensuring that accessibility-compliant court causelists are generated, empanelling sign language interpreters in the court complexes, setting up accessibility committees in all district court complexes etc. As Chairman of the IT Committee of the High Court, he also oversaw the rollout of various pathbreaking initiatives that made the judicial system easier to access and navigate for lawyers and litigants alike. This penchant for access to justice was also exemplified in, and merged perfectly with, Justice Shakdher’s stewardship of the Delhi High Court Legal Services Committee.

However, even after Justice Shakdher’s return to his parent High Court, the storm clouds never fully dissipated. Although a peripatetic existence was now behind him, towards the end of his tenure, there was a significant delay in the approval of the proposal for his elevation as Chief Justice of the High Court of Himachal Pradesh.

Even in the middle of this stymie, however, Justice Shakdher, true to form, as a part of the IT Committee, was busy conceiving and launching, amongst other things, a section called ‘Humor in Court’ on the website of the High Court of Delhi. Justice Shakdher has an abiding love for humour and wit, particularly the sui generis kind that is generated by exchanges between judges, lawyers, and litigants in our courtrooms. On this happy note, and as a fellow connoisseur of this particular brand of humour, I cannot resist retelling a rib-tickling incident that unfolded in Justice Shakdher’s courtroom many years ago, where the learned judge, albeit briefly, found himself at the receiving end.

A doyen of the bar, an octogenarian senior advocate, had secured interim relief in Justice Shakdher’s court in the face of vehement opposition from a tenacious and vociferous younger opponent, all the while battling the ill effects of some very pedestrian pleadings in the brief that he was championing. Justifiably frustrated after spending the better part of an hour grappling with largely inchoate pleadings, Justice Shakdher, once the matter had concluded, could not resist launching into a broadside against what he perceived as a wider phenomenon of abysmal pleadings emanating from the bar. He vocally shared his concerns about this troubling trend with the doyen. Relief having been duly secured in the case, the doyen wholeheartedly agreed with the judge about this malaise, and even the doyen’s young briefing counsel, who was the progenitor of the very pleadings that had so riled up Justice Shakdher, sagely nodded in considered agreement alongside him. To ensure complete placation, the doyen also made it known to the bench, in no uncertain terms, that while Justice Shakdher’s generation had admirably preserved the hallowed traditions of their forebears in the profession, the generations that followed had seemingly caused a calamitous decline in standards and were required to be taken to task. As the judge and the doyen came together in agreement about the post-apocalyptic legal landscape that lay before their eyes, those of us belonging to the culpable generations, sitting behind in the courtroom waiting for our cases to be called out, were immediately struck with terror and started to hastily rummage through the pleadings in our briefs.

However, the first sign of trouble emerged amidst this bonhomie between the judge and the doyen when the latter went beyond merely highlighting the malaise of bad pleadings. He ventured into identifying what he saw as the root cause: that many young lawyers in Delhi were increasingly starting their practice straightaway before the Supreme Court, instead of first honing their skills and learning the basics of pleadings before the High Court or the District Courts. The doyen, who, by then, had been practicing primarily before the Supreme Court for several decades but had earned his stirrups on the vaunted original side of the Bombay High Court, felt quite strongly about this. Curiously, Justice Shakdher stopped nodding in agreement with the doyen at this juncture. But the doyen, quite oblivious to this change, went on to proffer a cautionary tale, and stated that if a lawyer had gotten off to such a poor start in the profession, it was quite difficult for the person to make amends at a later stage, and that this infirmity would likely bedevil the person for all times to come in the professional sphere, whether at the bar or on the bench. As Justice Shakdher peremptorily said thank you to the doyen at this stage in a bid to end the exchange, and simultaneously gestured to his court-master to call out the next matter, the senior counsel for the opposing side, still smarting from his defeat, exclaimed with barely concealed delight: “My learned friend probably does not know that my Lord Justice Shakdher started his practice before the Supreme Court.”

As muffled laughter erupted in the courtroom, and as those of us sitting behind exchanged triumphant glances, our doyen now found himself in a most unenviable position. Any retreat, at this juncture, from the career path criticism that he had so passionately espoused just moments prior would seem disingenuous and contrived, but the judge also needed to be extricated from this embarrassing situation. It was a near impossible ask. But in that trying moment, when all seemed lost, the doyen lived up to his legend. Shrugging off the initial shock of this unexpected blow from his crafty opponent, the doyen responded in his trademark soft-spoken and mellifluous voice, saying: “I have only been certain of one thing in life, and Lordship’s example only serves to reinforce this belief of mine, and which is, that sheer talent can overcome anything!”

Our court system is akin to a forest. The judges and lawyers are like the towering trees, under whose canopies the perennial struggle for justice unfolds, much like the teeming life that thrives on the forest floor. The varying backgrounds, predilections, and attitudes of these judges and lawyers are what give the forest a sense of balance. This balance, in a manner of speech, makes up the institutional bark of the court, which is of far greater significance than any one individual tree. It is this balance that protects the forest as seasons change and external pressures ratchet up, almost as if a harsh winter has suddenly descended after a period of warm sunlight.

However, despite its majesty, the forest can also engender a sense of insularity and exclusion for some. It can be difficult for individuals from less privileged backgrounds or those who are differently abled to take root beneath the shadow of the towering trees. Then there are litigants, who, either because of a lack of resources or the sheer audacity of the causes they represent, struggle to find succour in the forest. For these individuals, the shelter of the forest appears unattainable, and they are left to figuratively trudge up a wind-beaten bare hill in a seemingly hopeless quest for recognition and justice.

In the ceaseless desolation of the bare hill, there sometimes emerges in the distance, a lone tree as a symbol of hope. But it is difficult for the tree to exist in this harsh environment. Unlike a knight errant, the lone tree must remain firmly rooted to the ground of the law, and faithful to the bark of institutional discipline that it is made up of. As it shoulders this burden and encounters tempest after tempest, alone on the wuthering heights, its trunk twists and spirals from the pressure. Yet, despite this great personal toll, the tree remains resilient, symbolising the redemptive potential of the law for the beleaguered seeking succour in an otherwise desolate landscape. This tree is of the forest, and yet, in some profound and almost mystical way, also outside of it. And, in all the glory of its lone silhouette, the tree validates the mighty forest itself.

Every single day of his tenure on the bench, Justice Shakdher played the part of the lone tree. On the judicial side, his pronouncements helped expand the boundary of the forest to cover more ground and encompass a wider praxis of rights. On the administrative side, he put in measures to ensure that persons who could otherwise never imagine entering the forest, let alone thriving within it, would now take permanent root on the forest floor. Thanks in no small part to the role that he played, the forest that Justice Shakdher so loved will change with the march of time. Into the forest will enter, in a manner of speech, more and more children of a lesser God. And as these saplings will take root and grow into majestic trees of their own right, their expanding canopies, informed by their lived experiences, will protect and nurture hitherto unrecognized hopes and dreams within the cradle of the law. The forest will be transformed forever.

In his significant work titled ‘The Four Loves', the author C.S. Lewis identifies the four loves that we as human beings experience in our time on the earth: affection, friendship, romantic love, and charity. Within each of these four loves, he identifies the two sub-sets of ‘gift-love’ and ‘need-love’. The latter is a love that is born out of our needs. As Lewis notes, “…We are born helpless. As soon as we are fully conscious we discover loneliness. We need others physically, emotionally, intellectually”. Gift-love, on the other hand, is more self-effacing and outward-focused and, in that form, pure and almost divine. Lewis explains the difference, though perhaps a bit simplistically, as under:

“The first distinction I made was therefore between what I called Gift-love and Need-love. The typical example of Gift-love would be that love which moves a man to work and plan and save for the future well-being of his family which he will die without sharing or seeing; of the second, that which sends a lonely or frightened child to its mother’s arms.”

It is but natural to reciprocate and sing paeans for a system that rewards you and gives you your due. However well-intentioned and meaningful, this is an innately human manifestation of need-love. On the other hand, when the system has treated you less than fairly, it is that much harder to continue to persevere within, and to contribute meaningfully to, it. Choosing to do so is the equivalent of gift-love. Justice Shakdher ably personifies the latter.

As lawyers, we expect the world from our judges—especially from that first generation that already graces the bench when we first enter the hallowed portals of the court. Much like the excitement of transitioning into adulthood, those early months and years in the profession are heady with promise and anticipation. During that time, most of all, we seek, perhaps unfairly, a form of existential validation from the daily task of adjudication that the judges perform. From personal expectations of a favourable consideration in those very first set of cases that we appear in before them, to wider systemic expectations of requiring them to set right the very ills of the world, and to, in the process, deliver on the transformative potential of the legal system that we were so vividly taught about in law school; the list of demands from the judges of this generation is particularly high. With this level of anticipation, also comes the potential for much painful disappointment. In the beautifully layered ‘East of Eden’, the author John Steinbeck adroitly sums up that feeling of disappointment we experience for the very first time when those we repose so much faith in seem to falter:

“When a child first catches adults out—when it first walks into his grave little head that adults do not have divine intelligence, that their judgments are not always wise, their thinking true, their sentences just—his world falls into panic desolation. The gods are fallen and all safety gone. And there is one sure thing about the fall of gods: they do not fall a little; they crash and shatter or sink deeply into green muck. It is a tedious job to build them up again; they never quite shine. And the child’s world is never quite whole again. It is an aching kind of growing.”

Justice Shakdher is part of my hallowed original generation of judges. He was barely a year old on the bench when I entered the profession. My first-ever appearance in the High Court, nearly fourteen years back, was also before him. In these long years of observing Justice Shakdher on the bench, he has exemplified for me—and for many of us at the bar—the revolutionary promise of the law, the potentiality of our institutions, and the human spirit to persevere against all adversity in upholding one’s values and sense of justice. And to do all this with grace, courteousness, and a profound sense of abnegation. Steinbeck’s ‘disappointed child’, upon attaining adulthood, is cursed to repeat the innately human cycle of disappointing the children of the future. Within the legal profession, I must, unashamedly, admit to being part of this cycle. When it comes to Justice Shakdher, however, there has been a bucking of this trend. In his courtroom, instead of disappointment and panic desolation, one forever encountered—on a deeply sentimental level—a true prelapsarian paradise of the law.

The path that Justice Shakdher forged also reminds us that the values we applaud in the people we admire reflect the culmination of a long and vigorous personal struggle. To quote the author, Michael Proust, from his magnum opus ‘In search of lost time’:

“The lives that you admire, the attitudes that seem noble to you, have not been shaped by a paterfamilias or a schoolmaster, they have sprung from very different beginnings, having been influenced by everything evil or commonplace that prevailed round them. They represent a struggle and a victory.”

As he retires as Chief Justice of the High Court of Himachal Pradesh, and rides off into the proverbial judicial sunset, for Justice Rajiv Shakdher, among the last of a gilded generation, a seeker of beauty, a lover of wit, an enabler of dreams, and a guardian of promises, I can conceive of no better words than these stanzas by the underrated Wilfried Wilson Gibson:

“A twisted ash, a ragged fir,

A silver birch with leaves astir.

Men talk of forests broad and deep

Where summer-long the shadows sleep.

Though I love forests deep and wide,

The lone tree on the bare hillside,

The brave wind-bitten lonely tree

Is rooted in the heart of me.

A twisted ash, a ragged fir,

A silver birch with leaves astir.

The brave wind-bitten lonely tree

Is rooted in the heart of me.”

Dr. Amit George is an advocate practicing before the High Court of Delhi.