EMPATHY & COMPASSION

This is the last post of the series 'Advice to Young Judges'. If there is no empathy, no compassion, then there is no justice.

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Advice to Young Judges

Judges Have Difficult Job।। Why Six & Not Nine Months at JTRI।। Insulting Punishment। । Respect Begets Respect।। Indiscretion In The Court।।Act Without - Pressure, Fear, Expectation।। Decide Without Favour।। Adopt More Active Role।।Raja Bhoj and the Grazier।। Be Open & Correct Mistakes।। Empathy & Compassion।।

Michael Kirby J. was a judge of the High Court of Australia, the highest court of law there. He is one of the greatest judges of our times. He has written a good article ‘On Writing Judgments’ published in (1990) 64 Austr LJ 691 (See End Note-1).  

In the beginning of this century, I met him in a conference at the National Judicial Academy Bhopal and told him about his article and that I had circulated the same. We formed a great bond. During the conversation, he told me that he was gay. It was rather awkward. We never admit or say such a thing in open social meeting but then he told me something that touched me.

He said that he never disclosed it till his mother was alive but openly admitted the same, when she was no more. This surprised me and I asked him for the reason. He said,

“My mother would have never understood that it is the way God made me; she would have blamed her upbringing of me, causing great pain to herself and I never wanted that she should feel sorry the way she brought me up.” (See End Note-2)

This statement left a deep impact on me and I realised compassion and empathy on his part. This is an essential part of being a good judge.  

These are some but not all the qualities that are required of good judges, but you must always remember what Aungier, the Governor of Bombay said, while inaugurating the first British Court of Judicature in Bombay in 1672: 

“Laws though in themselves never so wise and pious are but a dead letter and of little force except there be a due and impartial execution of them.” (The Common Law in India by M.C. Setalvad page 42)

This is now on the shoulders of upcoming judges, and I have no reason to doubt about your success in the same.

End Note-1: For easy access, this article and some other are published in a booklet titled as ‘Select Writing for Judges’ by the Judicial Training Research Institute, Lucknow. I had been circulating these articles to the newly appointed judges at the Allahabad High Court.

End Note-2: Contrast it with a story of an Indian journalist, how he told his mother about his being gay.

Appendix-1

After publishing this post, I sent the link to Michael Kirby J. for his information. Here is his reply

Dear Yatindra,

I do indeed recall meeting you at the National Judicial Academy in India. I am very touched at the overgenerous words you have used to describe me in your lecture.

I agree with you that judges need to retain human compassion. On the other hand, they sometimes have to be strong as steel where that is what a valid law requires of them.

I am specially grateful for your remembrance of my story concerning my late mother. She was a mother of great compassion. However, the secret/private matter of sexuality was difficult to discuss in my earlier years. Perhaps I had to speak to her about this topic in an elliptical way, by bringing my partner Johan (now with me for 56 years) to the parental home every week for dinner with my parents and family. This was a kind of repeated confession and I know that it was fully understood by my family, especially my mother, a person of great perception.

It is notable that in India, the largest democracy in the world, reading the Indian Penal Code of the criminal penalties on adult consensual sexual activity in private was not achieved through an enactment of the relevant parliament (which is what occurred in UK, Australia, Canada and New Zealand). It was achieved in a series of cases before the Indian courts, starting with that great judge A P Shah CJ of the Delhi High Court and finally concluding with a unanimous decision of the Supreme Court led by Mishra CJ in Johar v Union of India. 

It is one of my dreams that, in an indirect way, when earlier speaking about issues of the HIV/AIDS pandemic in India, I worked information on my own sexuality into the discussion, I may subconsciously have affected the thinking of the fine judges of India who ultimately administered a quietus to the old British imperial provision in the penal code. If this is so, it is the most important legacy of my entire legal life. I love the people of India. I would be proud if I had contributed to this reform.

Judges have opportunities to advance the law. In October 2025, the University of Sydney is conferring an honorary LLD on Prof Upendra Baxi, former Prof of Law and Vice Chancellor of the University of Delhi. When I was at the Sydney Law School, in the 1960s, he was there working with my teacher, Prof Julius Stone. It was Stone who taught that judges were not mechanics. They sometimes have what he called ‘’leeway for choice’’, in resolving uncertainties in our Constitution; ambiguities in legislation; or gaps in the common (judge made) law. 

I hope that before my days are done, I will have the chance to come back to the National Judicial Academy of India. And to repeat the lessons I learned from Prof Julius Stone. Judges are not entirely free to do what they like. But neither must they turn their back on the occasional opportunities that are presented by ambiguity/uncertainty/gaps in the law, which they are called upon to fill and explain.

I congratulate you on your distinguished career, culminating as Chief Justice of Chhattisgarh High Court. You would certainly have had under your watchful legal leadership many more human souls than were ever under mine.

With respects and fraternal affection,

Michael Kirby.

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