The Indian Express recently carried an interview with the former chief justice of India (IE, January 22 and 23). It reminded me of what Justice Sabharwal had said towards the end of his tenure: “I cannot make new law. I have to implement the law.”

The former chief justice was talking about situations where the letter of the law comes into apparent conflict with the social circumstances of a case. A great story was woven around this dilemma, faced so often by judges, in Alan Paton’s Cry, the Beloved Country, arguably one of the best novels of the last century.

Written in the 1940s, in a South Africa under apartheid, it tells the story of an African boy, Absalom Kumalo, who, seeking to escape from the grinding poverty of his Natal village, goes to the big town to seek his fortune. However, in Johannesburg, he is forced to take to petty crime to eke out a living. One day, while burgling a house, he and two of his accomplices are suddenly accosted by its White owner. In panic, Kumalo fires the gun he is carrying and kills the man, who — in an ironic twist to the tale — also happens to be a Black rights’ activist.

After due investigation, the culprit is caught, but his companions wriggle out of the jam, leaving him alone to face the rap. He will not tell on them and, therefore, now has no witnesses to back his ‘accidental shooting’ plea. The judge senses this and is also aware of the boy’s background of poverty, which drives decent young men to a life of crime. Still, holding him guilty of murder, he says in his judgment, “It is one of the most monumental achievements of this society that it has made a Law, and has set the judges to administer it, and has freed those judges from any obligation whatsoever but to administer the Law. But a judge may not trifle with the Law if the society is defective. If the Law is the law of a society that some feel to be unjust, it is the Law and society that must be changed. In the meantime there is an existing Law and it is the sacred duty of the judge to administer it.”

... contd.