Will result in slippery slope if courts are regarded as only organ to defend citizens' rights: Justice DY Chandrachud

Supreme Court judge Justice DY Chandrachud recently frowned upon a growing trend in the country where courts are used as the only line of defence to secure the rights of citizens..Justice Chandrachud said that considering courts as the only organ for securing rights of citizens will result in a slippery slope. "The growing litigious trend in the country is indicative of the lack of patience in the political discourse. This results in a slippery slope where courts are regarded as the only organ of the State for realization of rights - obviating the need for continuous engagement with the legislature and the executive," he said. The apex court judge was speaking at King's College, London on the theme of protection of human rights and civil liberties vis-a-vis the role of courts in a democracy.While the Supreme Court must protect the fundamental rights of persons and perform its constitutional duty, it cannot and must not transcend its role by deciding issues requiring the involvement of elected representatives, the judge emphasised..Cautioning against the use of courts as a first line of defence, he said,"The use of the court as the first line of defence to solve complicated social issues is a reflection of the waning power of discourse and consensus building. If we allow our local laws, institutions and practices to be co-opted by the forces of racism, casteism and discrimination, all our social problems will have to be taken out of deliberative fora and placed before the court.".The judge further observed that a democratic society must resolve its issues through public deliberation, discourse and the engagement of citizens with their representatives and the Constitution. "Refining our rights rhetoric to include participative processes and as well as substantive outcomes is one step towards recognising the complementary roles the political and legal spheres of the Constitution play in protecting our human rights," the judge added in this regard..Over the course of his speech, Justice Chandrachud discussed how the courts in India have played a role in protecting human rights and preserving civil liberties, and how they interacted with the global community of judges and influenced them or have been influenced by their work. He posed the question,"Why is it necessary to look at international judicial trends while examining issues of human rights in one’s own country? A possible answer is that typically human rights are characterized as inherent and universal...Human rights are universal because they are natural. The invocation of human rights in this conception is not contingent on their recognition by State laws. Courts also tend to protect certain “outside rights” or unenumerated rights which may not be explicitly stated in a statute." .He went on to detail how the Supreme Court has, over the past few years, moved beyond manifest forms of discrimination and has engaged with the binary division of gender into men and women, gendered notions of certain professions, and discrimination on the basis of gender - in the workplace, within the confines of one’s homes, or in the society, among others.Reference in this regard was made to the judgment in Babita Puniya v. Secretary, Ministry of Defence concerning the denial of Permanent Commission to women officers in the Armed Forces.He also cited Anuj Garg v. Hotel Association of India, in which the apex court struck down the discriminatory provisions of the Punjab Excise Act, 1914 which prohibited men under the age of 25 years and “any woman” in premises where liquor or drugs were consumed."The Supreme Court has realized that it is not merely enough that women are granted the opportunity to sit on the table, but also to ensure that their lived experiences are factored in to ensure that they can avail such opportunities," he said.He also highlighted the Supreme Court's focus on intersectional discrimination, where many factors including gender, caste and disability play a role."These factors do not operate in isolation and are deeply imbedded in our society. The only possible way of creating a more inclusive society is to recognize these causes of discrimination through our judicial work and even in our every day lives," the judge said..With regard to the struggles of the LGBTQ community, the judge said that the community found its voice in the courts by way of judgments such as National Legal Services Authority v. Union of India & Others and Navtej Johar v. Union of India. He went on to show how these judgments were influenced by jurisprudence from foreign countries, and how they in turn influenced courts in India and other countries. On the effect of the Navtej Johar judgment, he said,"In 2019, the Botswana High Court declared a law criminalising same sex relations as unconstitutional by relying heavily on Navtej Johar. It is also encouraging to note that the Indian High Courts post the decision in Navtej Johar have started recognizing romantic relationships between the queer women and granting them protection. This has been possible because of the expansive conception of rights in the judgement.".Finally, he opined that there was a need to address the inconsistent sentencing of death penalty convicts which has permeated to the district courts and the High Courts of the country."The need for a uniform pattern of sentencing while accounting for various psychological, social and biological factors is necessary to ensure that criminal law does not appear, in its application, to be inconsistent and a game of chance," he said. .Concluding his speech, he said,"The fulfillment of the ideals of our Constitution and the protections guaranteed under it cannot only be achieved by exercising our role as citizens once every five years. There must be a continuous engagement with all the pillars of democracy."

Will result in slippery slope if courts are regarded as only organ to defend citizens' rights: Justice DY Chandrachud

Khadija Khan

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