Revisiting ‘Speluncean Explorers’ through a film and a Supreme Court verdict

‘The Case of the Speluncean Explorers’, an article authored by Lon L. Fuller was first published in the Harvard Law Review in 1949. It presents a fictional case about a group of lost and starving cave explorers who roll the dice to determine which one of them will be eaten by the others for sustenance until rescuers reach them. 

The article takes the form of a verdict with five different opinions issued by judges from different schools of jurisprudential thought. The judges are interpreting a statutory provision which says: “Whoever shall willfully take the life of another shall be punished by death.” The provision has no exception.  

The complex facts of the fictional case—along with the contestations between various schools of legal thought—have made it a favourite teaching tool in jurisprudence classrooms around the world. The article has had many afterlives in its various readings, re-readings and follow-ups. 

My own epistemic trigger to go back to the case comes from an unusual source—the Hindi film Dhadak-2, which is an official remake of the Tamil film Pariyerum Perumal. In a scene in Dhadak-2, the Dalit law student protagonist, narrates the case in his basti (neighborhood). He has been taught the case by a legal theory teacher in class. Engaged discussion ensues in the basti, with one character asking whether the victim—the one who is finally eaten by the explorers—is a Dalit. That’s when someone in the group replies: “Had he been Dalit, they would not have touched him.” 

In Pariyerum Perumal, the case taught in class is of Raja Nandakumar, considered to be the first Indian to be unjustly sentenced to death under colonial law in 1775. In the film, Nandakumar’s case is taught as a “judicial murder”, with the director using it to argue that honour killings are “judicial murders” too, because the caste system operates with its own sense of justice. The scene hints at the persecution awaiting the protagonist. 

These scenes, designed to highlight the graded inequalities and associated untouchability in Hindu society, got me thinking about how higher courts have approached cases where the complainant or alleged victim is Dalit. To narrow down the theme, I looked at the language used by the Gujarat High Court and the Supreme Court in some cases under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 

Fuller’s article is silent on the question of the race of the victim Roger Whetmore and the four other defendants. We do not even know the race of the five judges who issue opinions. Their application of legal theory is strictly based on the ‘facts’ of the case. However, those who engage with the law are aware that the relevant ‘facts’ are often based on the erasure of several others. In this hypothetical case, could the racial aspect be an omitted fact? The scenes in Dhadak-2 and Pariyerum Perumal open up a new reading of ‘Speluncean’ by asking about caste identity in the Indian context. 

How can we ‘misread the text’? 

In Fuller’s article, judges take positions according to their jurisprudential moorings. Justice Truepenny takes the legal positivist perspective, reads the provision strictly, and pronounces the death sentence. However, he also addresses the Chief Executive and requests it to grant executive clemency. Justice Foster adopts the Natural Law view, arguing that the caved-in explorers were not in a “state of civil society” but in a “state of nature” where “the reason of law” has ceased. He lets the defendants off the hook. Justice Tatting recuses himself, conflicted as he is between sympathy for the defendants and disgust for the abhorrent act they have committed. Justice Keen favours the death penalty. Justice Handy bats in favour of considering public opinion. 

Now, let’s think about how we can ‘misread’ the text to go against the grain? How can we challenge the fictional case’s stated and unstated assumptions? Terry Threadgold suggests that when feminist and critical legal scholars deliberately read the black letter of law in ways in which the text was never meant to be read, they do it knowing fully well that they are breaking the rules. They do so in order to “tell a different story.” 

In the original article, the defendants’ testimonies regarding the incident were accepted as credible. The fact of Whetmore—who is not around to defend himself—being the first to propose flesh-eating as well as the method of throwing dice was accepted without contention. The judges also believed the defendants’ contention that Whetmore did not object to the fairness of the method even though he developed “cold feet” just before the dice were cast. 

Let’s complicate this aspect of this case by supposing that one of the defendants is Tom Robinson, the African American character in Harper Lee’s classic novel To Kill a Mockingbird. In the novel, the jurors of Maycomb County convict Robinson for raping a white woman even as the ‘facts’ seem to establish to the reader that he is innocent. In Fuller’s fictional case, Whetmore is the one who first asks the chairperson of the physicians committee—over radio—whether there’s a reasonable chance that the act of cannibalism would save the remaining four cavers. If Robinson had been one of the defendants who’d survived, would his testimony that Whetmore first suggested killing and cannibalism have equal weight? 

The question of race and testimonial justice becomes central from this vantage. Miranda Fricker points out that testimonial injustice is linked to the differential in identity power. Disfranchised groups face a “credibility deficit” due to stereotypes associated with them; dominant groups, on the other hand, enjoy a “credibility excess”. Fricker defines prejudice as a “social judgement” while making the point that To Kill a Mockingbird makes it clear that the jurors’ view of Robinson as a lying, black man distorts their perception of the facts and the evidence. 

What if the defendants or the victim were Dalit? 

Let’s now return to the hypothetical question posed in the Dalit basti in Dhadak-2: what if Whetmore was Dalit? The caste hierarchy in Hindu society subliminally underwrites the relative influence of the testimonial power of different communities. Let’s look at the vocabulary used to describe complainants or victims from marginalised communities in some higher court verdicts under the SC/ST (Prevention of Atrocities) Act. This approach could be classed as a ‘jurisprudential aesthetic analysis’, which involves examining how rhetorical, narrative and symbolic features of language contribute to the creation of legal meaning. 

Here’s Justice K.J. Vaidya of the Gujarat High Court in Dr. N.T. Desai v State of Gujarat (1996): 

“…this Court prime facie at the very outset is at some doubt about the complainant’s story and yet if it readily, mechanically like a gullible child accepts the allegations made in the complaint at its face value, it would be surely blundering and wandering away from the path of bail-justice, making itself readily available in the hands of the scheming complainant who on mere asking will get arrested accused on some false allegations of having committed non-bailable offence, under the Atrocity Act, meaning thereby the Court rendering itself quite deaf, dumb and blind mortgaging its commonsense, ordinary prudence with no perception for justice, denying the rightful protection to the accused becoming ready pawn pliable in the hands of sometime scheming, unscrupulous complainants!!!” 

The italics in the above excerpt are mine for emphasis but the exclamation marks are the court’s. 

In a different verdict from the Gujarat High Court—Dhiren Prafulbhai Shah v State of Gujarat (2016)—Justice J.B. Pardiwala, who is now in the Supreme Court and is a likely future Chief Justice of India, remarked: 

“In the course of my present sitting, I have come across various cases wherein the provisions of Atrocities Act are misused…I have no hesitation of saying that in most of the cases, it was found that FIRs/Complaints were filed only to settle the score with their opponents…”

In 1991, in Pankaj D. Suthar v State of Gujarat, a single judge of the Gujarat High Court granted anticipatory bail to an individual accused under the Atrocities Act even as the application of Section 438 of the Criminal Procedure Code was precluded by Section 18 of the Atrocities Act. The judge’s observations on the Act are illuminating—after citing the historical reasons for the Act, he suggested that it was being abused due to its convenient conversion “into a weapon of wrecking personal vengeance on the opponents.” The Judgement advised caution against “scheming, unscrupulous complainants” (sounds familiar?) and asserted that the Court won’t be “mechanically and blindly” guided by “popular prejudices” based on “some words” of the complainant. 

The author of this verdict was Justice Vaidya and the counsel for the accused was one J.B. Pardiwala. 

In Dr. Subhash Kashinath Mahajan v State of Maharashtra (2018), the Supreme Court approvingly cited Justice Pardiwala’s remarks in Dhiren Prafulbhai Shah while observing: 

“There can be no dispute with the proposition that mere unilateral allegation by any individual belonging to any caste, when such allegation is clearly motivated and false, cannot be treated as enough to deprive a person of his liberty without an independent scrutiny… If this interpretation is not taken, it may be difficult for public servants to discharge their bona fide functions and, in given cases, they can be blackmailed with the threat of a false case being registered under the Atrocities Act, without any protection of law. This cannot be the scenario in a civilized society.”

In this verdict, the Bench cites data from the National Crime Records Bureau to highlight that 75 percent of cases under the Atrocities Act in 2015 had resulted in acquittal or withdrawal. The Judgement had caused widespread dissatisfaction among Dalit communities, with calls for a Bharat bandh and representations to government officials. 

P.K. Krishnan, one of the prime non-political movers of the Atrocities Act, opposed the Supreme Court’s generalisations on the misuse of the Act in Mahajan, and challenged the cited statistics as “selective and incomplete”. He attributed the low conviction rate to the difficulties around securing proper investigation and trial “because of the juxtaposition of the powerful and the powerless.” He noted that “clear-cut cases such as massacres and mass arsons” had resulted in acquittals and also pointed out “acquittal does not mean the case is false.” 

These are only some instances where judges of higher courts have used alarming words to indict the testimonies of those from marginalised communities—while interpreting a protective legislation for those communities, no less. The verdicts often suggest that these testimonies are initially viewed as suspect or not credible. In our courts—as in our society—there is a ‘credibility deficit’ when it comes to Dalit communities. 

Which lives are worthy of mourning? 

Justice Foster’s reading of ‘Speluncean’ from the Natural Law standpoint did not get support from the other judges. Justice Truepenny preferred a strict interpretation, and so did Justice Keen, who rejected the liberal reading of self-defence. Justice Tatting, while recusing himself, criticised the Natural Law position on the ground that it went against the principle of stare decisis. Justice Handy, as we know, preferred a kind of referendum where the public could weigh in. 

These views can be examined from the standpoint of critical race theory, feminist theory and other critical schools of jurisprudence. Literal interpretation, which won out here, comes from positivism—which presents itself as a ‘neutral’ way of doing law. In reality, though, law’s gendered and racial nature has been pointed out by several theorists and critics. Margaret Davies calls it out as a terrain dominated by men, and that too “not all men, of course, but educated white men.” 

In his opinion in one of the rewritings of ‘Speluncean’, Professor John O. Calmore raises the issue of how the death penalty is mostly imposed on black and minority convicts. In India, the researchers at Project 39A (now called The Square Circle Clinic) have likewise found that socially and economically vulnerable people are disproportionately sentenced to death.

While more empirical work is needed on the issue, it won’t be a stretch to say that individuals from marginalised communities are less likely to find refuge in liberal interpretations of the statute. Similarly, if the defendant is from a dominant caste, it’s likely that public opinion—shaped as it is by dominant classes and castes—will sway in favour of them.

Our reimagining of ‘Speluncean’ within the framework of Indian caste hierarchies must also consider several exclusions within the liberal concept of ‘Right to Life’. Judith Butler’s concept of a ‘matrix of grievability’ provides a provocative framework for examining how systems of power determine which lives are considered valuable, recognisable and worthy of mourning. Within this system of power, only some lives are deemed ‘grievable’ while others’ sufferings are normalised. This segment of the population, Butler argues, is treated by the State apparatus as ‘lives that are not quite lives’. 

In the same context, Critical Race Theorists have shown how the broad interpretation of ‘self-defence’ tends to favour white bodies. The acquittal of Kyle Rittenhouse in the Kenosha, Wisconsin shooting case brought this critique into sharper focus. The liberal interpretation of ‘reasonable fear’ in this case highlighted the racial nature of the construction of ‘reasonableness’: black bodies were seen as threatening; white fear of them was seen as inherently reasonable. 

In India, systemic bias is often a function of caste privilege. Recently, in open court, an advocate named Rakesh Kishore hurled a shoe at B.R. Gavai, the Dalit Chief Justice of India, to reportedly express his annoyance at the Chief’s alleged disrespect for ‘Sanatana Dharma’. It’s telling that his act received support from countless, nameless trolls on social media. The Supreme Court has ruled out prosecuting him for contempt. This privilege may not have been available to a Dalit or a Muslim. 

How can we teach ‘Speluncean’ in India? 

With this article, I hope to open the space for an alternate reading of a canon text in the teaching of jurisprudence. This reading is intended to be rooted in the Indian experience, and hopes to spark off ideas for theoretical and empirical work on how the caste position of the litigants influences the approaches, vocabularies and conclusions of courts.

My hope for this inquiry is to result in materials that can then be used in Indian classrooms. Law schools often become a site where, through pedagogy and epistemic modes, social hierarchies are naturalised. Sumit Baudh’s ‘Roll call of shame’, for instance, highlights how even our attendance registers can perpetuate caste hierarchies. As teachers of law and jurisprudence, it is our responsibility to equip our students to view legal texts and judgements through the prisms of subjugated identities and their histories. 

Vijay K. Tiwari is an Assistant Professor (Law) at the West Bengal National University of Juridical Sciences. He is an academician with disability who teaches and approaches legal theory from his ‘crip’ positionality.