‘Any semblance of authoritarianism upsets promise to ancestors who accepted India as constitutional republic’: Justice D Y Chandrachud

Justice Chandrachud stated that viewing the Constitution as the “primary spirit of counter-majoritarianism” will help achieve inclusive scientific progress in a globalised and increasingly privatised world.

Majoritarian tendencies must be questioned against the constitutional promise of securing to the country’s citizens religious freedom, equality between persons irrespective of sex, caste or religion, fundamental freedom of speech and movement. And all this without undue state interference and an enduring right to life and personal liberty, Supreme Court judge, Justice D Y Chandrachud, said on Saturday.

Speaking at a webinar in memory of his father, late Justice Y V Chandrachud, on the occasion of his 101st birth anniversary, Justice Chandrachud said that “any semblance of authoritarianism, clampdown on civil liberties, sexism, casteism, otherization on account of religion or region is upsetting a sacred promise that was made to our ancestors who accepted India as their constitutional republic”.

“Our nation”, he said at the event organised by the Pune-based Shikshan Prasarak Mandali. “was forged and united with a promise of certain commitments and entitlements to each and every citizen. A promise of religious freedom, a promise of equality between persons, irrespective of sex, caste or religion, a promise of fundamental freedom of speech and movement — without undue state interference and an enduring right to life and personal liberty.

“Majoritarian tendencies, whenever and however they arise, must be questioned against this background of our constitutive promise.”

Justice Chandrachud stated that viewing the Constitution as the “primary spirit of counter-majoritarianism” will help achieve inclusive scientific progress in a globalised and increasingly privatised world.

“Just like technology, the Constitution also could not predict the extent of globalisation and privatisation that we are witnessing today. The Constitution envisaged our newly independent state as the predominant actor, employer and developer of our society. Naturally, several of our fundamental rights and guarantees, in their literal word, seek to protect us from the potential tyranny of the state,” he said.

“However, the constitutional spirit seeks to protect individuals from hegemonic power structures, irrespective of their forms…. Presently, in a globalised and increasingly privatised world, the idea of liberty for some, such as powerful corporations, may not necessarily result in dignity or life for most, especially the marginalised classes and sections of society. In viewing our Constitution as the primary spirit of counter-majoritarianism, we can equip ourselves with a unique lens to view the world and balance competing interests, where we undoubtedly make scientific progress, but in a manner that benefits all of humanity, and not just a narrow section.”

He said, “It is important to recognise that in times of peace or crisis, irrespective of the electoral legitimacy of the government, the constitution is a north star, against which the conformity of every state action or inaction, would have to be judged.”

The Constitution, Justice Chandrachud said, “didn’t just transform us from colonial subjects to free citizens, but also undertook a massive challenge of confronting a polity that was plagued by oppressive systems of caste, patriarchy and communal violence.”

Explaining how the Constitution is not a “dead letter”, he said the document “drafted in 1950, would not be compatible with our lives today if we considered it as dead letter that would have to be applied as a rigid formula for evaluating realities that were previously unfathomable.”

Pointing out how B R Ambedkar successfully challenged the prejudices of his time, Justice Chandrachud said, “Just like him, several revolutionaries, in India and the world over, like Savitribai Phule, Jyotiba Phule, Nelson Mandela and even Malala Yousafzai heralded their emancipatory movements through an initial and, at the time, circumstance-radical quest for education.” These stories, he said, are “useful reminders that the privilege of education we have today, are fruits of the boldest struggles and represent the dreams of our ancestors.”

“The mantle is only passed forward, as every generation is entrusted with the task of bettering our society”, said Justice Chandrachud. He said, “I firmly believe students can play an instrumental role in heralding progressive politics and cultures by using their formative years to question existing systems and hierarchies.”

He added that “preserving” the “fundamental ethos” of the Constitution, which is its basic structure, “is the precise role which students can play, as conscientious citizens”.

Speaking on how the digital era is reconfiguring the shape and structure of the society, he said, “We must understand that our democratic institutions must adapt to it, in order to retain collective power and decision-making over something that currently constitutes essential infrastructure.”

The question of privacy in the Aadhaar case “arose as a consequence of our digitally mediated life”, he said.

Justice Chandrachud said that his “conclusion in the Supreme Court decision, recognising right to privacy as an essential component of the ‘right to life’ under Article 21 of the Indian Constitution, was a recognition of the Constitution as a foundation, which future generations had to build upon — as opposed to a rigid text that would be literally applied, divorced from its historical context. The Constitution sought to define the contours of our democratic institutions, by providing certain operative rules and constraints, that were grounded in a commitment to equality, liberty and justice for all, as an enduring vision. It is the job of succeeding generations to interpret its spirit and apply it to their lived realities.”

Underlining how students can be the agents for change, he referred to climate activist Greta Thunberg and said, “Her example, in addition that of many others, shows us how nobody is too young or too insignificant to effectuate a big change.”

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