By Yesterday, during what had started as idle holiday viewing, I came across a four-part Netflix series on the International Military Tribunal for the Far East, the “Tokyo Trial”, convened by General Douglas MacArthur in 1946. Irrfan Khan, playing Justice Radhabinod Pal of British India, brought to life a figure I had known of vaguely but never seriously reckoned with: a judge who sat among eleven Allied jurists and refused, without apology, to convict a single accused. His dissenting opinion, running to over a thousand pages, became the most consequential individual act of judicial courage in the twentieth century. It also came about, as we shall see, almost by accident.
Justice Pal's position rested on a principle that sits at the foundation of criminal law: nullum crimen sine lege, no crime without prior law. The charges of "crimes against peace" and individual criminal responsibility for state-directed warfare had no antecedent in positive international law at the time the Japanese leaders acted. To convict them was, in Pal's analysis, to punish men retroactively for conduct that had not been defined as criminal when they engaged in it - victor's justice wearing a legal mask. One thinks of Habib Jaleeb: main nahi jaanta, main nahi maanta. I do not accept it, I do not recognise it. That was Pal, entirely.
What makes this even more remarkable is something Mr. Sanjoy Ghose, one of my favourite “struggling” senior counsel, observed in a recent video: Pal's appointment to the Tribunal was itself an accident. Most senior Indian judges had been reluctant to travel to post-war Japan, and Pal's name had slipped through a process that, under ordinary circumstances, would have produced a more carefully managed appointment. The system had not selected for courage. It had simply failed, momentarily, to filter it out.
This is the troubling pattern. We celebrate judicial courage in hindsight while working quietly to prevent it in the present. Justice H.R. Khanna, who alone dissented in ADM Jabalpur v. Shivkant Shukla (1976) to hold that the right to life and liberty could not be suspended even during Emergency, knew exactly what his judgment would cost him. He wrote, in what his autobiography Neither Roses nor Thorns records as a conversation with his sister by the Ganges, “I have prepared a judgment which is going to cost me the Chief Justiceship of India.” Justice M.H. Beg was elevated over him. Justice Khanna resigned. He later chaired the Law Commission and even became Law Minister. His dissent, dismissed and punished in 1976, was finally vindicated in K.S. Puttaswamy (2017), when a nine-judge bench of the Supreme Court overruled ADM Jabalpur and Justice D.Y. Chandrachud described Khanna's opinion as “the voice of the Constitution.”
The contemporary parallel is Justice S. Muralidhar. On the night of 26 February 2020, as North-East Delhi burned, he convened a midnight bench at his residence and directed the police to evacuate over twenty riot victims who were stranded in a hospital in Mustafabad. Earlier that same evening, he had asked Delhi Police: "The city is burning. When you have multiple clips of inflammatory speeches, what are you waiting for?" Hours later, the gazette notification transferring him out of the Delhi High Court, with immediate effect, was issued. Mr. Sanjay Hegde, Senior Advocate, just last week observed that Justice Muralidhar was the (Justice) Radha Binod Pal of our times, particularly in the context of his current work as a UN Commissioner on Human Rights, including on the question of the Israeli government's conduct in Gaza. Justice Muralidhar retired as Chief Justice of the Orissa High Court, never having made it to the Supreme Court bench. Most people in the legal fraternity have their own views on why.
The pattern is consistent enough to demand an honest examination of how judicial appointments actually work in India. The unwritten qualification for the bench, as most practitioners who have watched these processes closely will tell you, has very little to do with intellectual independence and a great deal to do with its opposite. Not corruption, that is a separate conversation, but the subtler quality of going along. Of being the person who does not raise his hand when the room is nodding. Aspirants to the bench are advised, not unkindly, that no one should be able to identify a single courageous bone in their body before appointment. The sycophancy is not strategic in the manner of political loyalty; it is the slow, unconscious response to a system where advancement flows through relationships, and relationships reward predictability.
This culture does not begin at the Bar. It begins far earlier, in the very institutions that are supposed to train us to think freely. Indian law schools and law colleges, with some honourable exceptions, actively discourage intellectual nonconformity. Students learn early that the route to prizes, placements, and preferment runs through the careful management of what you say and to whom you say it. The one who challenges a dominant view in a moot, or dissents from a teacher's preferred legal position, or writes something uncomfortable in a law review, rarely finds it helps them. The culture that eventually produces the sycophantic judicial aspirant was first cultivated in the classroom.
There is a certain irony in the fact that the Restatement of Values of Judicial Life, adopted by the Supreme Court in 1997, says nothing about courage at all. Its sixteen points cover impartiality, aloofness, propriety, and the avoidance of conflicts of interest. Courage, the quality that distinguishes Justice Pal from the ten judges who voted the other way, the quality Justice Khanna exercised when four of his colleagues on the same bench did not, that does not appear. The Bangalore Principles of Judicial Conduct, the global framework, similarly omit it, while stating that “In performing judicial duties, a judge shall be independent of judicial colleagues in respect of decisions that the judge is obliged to make independently”, though a formal proposal to add courage as a seventh principle is now under discussion in international judicial training networks. It is remarkable that we have needed this long to notice the gap.
Institutional independence i.e. the structural arrangements that insulate courts from executive interference, is frequently confused with judicial courage, but they are not the same thing. A judge can sit in a formally independent court, with security of tenure and constitutional protection, and still be constitutionally timid. Institutional independence is a precondition, not a substitute. What it cannot supply, but what is indispensable, is the individual willingness to reach the right conclusion when every signal in the room suggests doing otherwise. That willingness is not produced by institutional design. It is a matter of character, formed over years and either sustained or gradually trained out of a person by the environments they inhabit.
Justice Pal, Justice Khanna, Justice Muralidhar are not isolated curiosities in the judicial record. They are proof that the quality exists, that it can survive the system's filters, and that when it does, it outlasts the politics that tried to contain it. Pal's dissent stands at Yasukuni. Khanna's portrait hangs in Courtroom No. 2. Justice Muralidhar is a hero to many in our generation. The question our institutions have still not seriously confronted is whether we are prepared to select for this quality, to protect it when we find it, and to stop treating it as an aberration to be managed rather than a foundation to be built upon.
Author is an Advocate practices primarily before High Court of Punjab and Haryana. Views are personal.