Chandrachud said that public-spirited citizens need to bring forward petitions that are well focused and narrowly tailored, based on strong evidence, broad stakeholder consultation, and genuinely representing the voices of those on whose behalf it is brought forward
The Supreme Court judge was speaking at a session of the Jindal Global Virtual Conference. In the course of his address, Justice Chandrachud noted “endowing courts with the expectation that they are the sole repositories of social change is unrealistic. It will breed cynicism of unrealised hopes.”
However, there are cases where the courts can play a vital role in fostering the growth of Constitutional and democratic values, he said. Pertinently, he added,
“In cases and controversies brought to the court evidencing a deprivation of Constitutional and legal rights, the Supreme Court of India has not just the power, but the mandate to interfere.”
He also remarked that the present pandemic situation had raised several pertinent questions, including on the role of the courts in the realisation of liberal, democratic, and Constitutional values.
In a later part of his address, he noted that social action litigation has served as a powerful tool to correct deficiencies in government delivery and to protect those at the receiving end of repression, administrative inefficiency, and absence of legal protection, he observed.
He added that public-spirited citizens need to bring forward petitions that are well focused and narrowly tailored, based on strong evidence, broad stakeholder consultation, and genuinely representing the voices of those on whose behalf it is brought forward.
Justice Chandrachud went on to cite two recent examples where the Supreme Court had interfered, i.e the Gujarat Mazdoor Sabha case and the BK Pavitra case. The latter involved a question of consequential seniority in promotions for members of the Scheduled Castes and Scheduled Tribes in Karnataka.
As a prelude to his comments on this case, Justice Chandrachud observed,
“The framers of the Constitution realised that in order to uproot caste-based inequality, State intervention in the nature of affirmative action is indispensable.”
He went on to observe that in the BK Pavitra case, the Supreme Court was called on to tackle negative stereotypes regarding the merit and efficiency of Scheduled Castes and Scheduled Tribes which were couched in the seemingly neutral language of law.
Justice Chandrachud opined that while upholding the validity of the promotions, the Court recognised that “assumptions about merit cannot be divorced from social and economic privileges that have accrued to the forward castes and the centuries of deprivation and discrimination suffered by the members of the scheduled caste and scheduled tribe communities.”
He remarked that the top court held that efficiency in administration must be defined in an inclusive sense. He added:
“If this benchmark of efficiency is grounded in exclusion, it would produce a pattern of governance which is skewed against the marginalised. If this benchmark of efficiency is grounded in equal access, our outcomes will reflect the commitment of the Constitution to produce a just, social order.”
Concerns of socio-economic inequalities had also driven the Allahabad High Court to register a suo motu case in the Hathras rape incident, he added.
The High Court made note to question whether the socio-economic status of the deceased victim’s family has been taken advantage of by the State authorities to oppress and deprive them of their Constitutional rights.
“I cite this example only to drive home the importance of judicial intervention as a bulwark against the exercise of State power that militates against the principles of the Constitution”, Justice Chandrachud said.
A charge often made against the Indian Constitution Project is that the Constitution is an elite document, Justice Chandrachud observed.
“Instead of emerging from popular pressure within the society, and being framed by individuals, reflecting its full richness and diversity, the argument is that the Constitution was a creation of India’s political elite”, he noted.
He went on to point out that even its architect, Dr BR Ambedkar, was cognisant that while the Constitution was imbued with the ideals of liberty, equality, and fraternity, its success would depend on how ordinary people would work it.
The Constitution is only permanent, and not eternal
Our framers recognised that for our Constitution to endure and liberal democracy to survive, the State must fulfil its duty of ensuring equal distribution of resources and the elimination of social and institutional barriers, Justice Chandrachud remarked.
Pertinently, he emphasised that the State must also remain committed to achieving equality and protecting minorities in order to prevent violent upheavals and ensure the continuance of Constitutional methods for expressing discontent. He explained:
“As Justice Subba Rao reminded us, a Constitution is only permanent, and not eternal. There is nothing to choose between destruction by amendment or by revolution. The former is brought by totalitarian rule, which cannot brook constitutional checks and the other by the discontentment brought by misrule. If either happens, the Constitution will be a scrap of paper.”
Constitution as a tool for social movements
Describing the Constitution as a mobilisational tool for social movements and a powerful moral register that can inspire citizens’ movements, Justice Chandrachud went on observe:
“The Constitution does not belong solely to lawyers and judges. The Constitution’s aspirations and transformative vision transcend legalist formulae and esoteric legal debate.”
On this count, a crucial role is also played by the guiding light of the Preamble, which carries with an important task of imprinting into our Constitutional consciousness the values of justice, liberty, equality, and fraternity.
“As long as we view the Preamble as our guiding light and strive to make its promise come alive, our country will remain on the path of a Constitutional, liberal democracy”, Justice Chandrachud said.
He went on to refer to how the Constitution’s vocabulary was used by various marginalised groups – including undertrial prisoners, members of the Scheduled Caste and Scheduled Tribe community, women, members of the LGBTQ community, slum dwellers, pavement dwellers etc – to seek empowerment and advancement.
In the early years, Justice Chandrachud pointed out, more than lawyers, social entrepreneurs approached the Court in public interest litigation. Judges and lawyers have to play a facilitative role, he added.
As he concluded his talk, Justice Chandrachud observed,
“The framers of our Constitution laid down the cornerstone to create a legal and institutional infrastructure to promote a culture of Constitutionalism and liberal democracy. It now falls on each of us to play our part to ensure that we keep it that way.”
The session also saw renowned legal scholar, Prof (Dr) Upendra Baxi render the Presidential address, which touched upon the jurisprudence of existence and the need to criminalise climate change denial.
Professor (Dr) C Raj Kumar, founding Vice-Chancellor of Jindal Global University, rendered the welcome address, whereas Senior Additional Registrar, Professor (Dr) Upasana Mahanta gave the concluding remarks.
Courtesy: Bar and Bench