Highlighting that the Courts cannot be a "one stop solution" to resolve complicated issues of society and policy, Supreme Court judge Justice DY Chandrachud said that a democratic society must resolve issues through public deliberation, discourse and the engagement of citizens with their representatives and the Constitution
"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", Justice Chandrachud said.
"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 added.
Justice Chandrachud made these comments as the closing remarks of the lecture delivered by him at the King's College in London on the topic "Protecting human rights and preserving civil liberties: The role of courts in a democracy".
While saying that the Supreme Court must protect the fundamental rights of the citizens, he cautioned that it "must not transcend its role by deciding issues requiring the involvement of elected representatives". Doing so would not only be a deviation from the Court's constitutional role but would not serve a democratic society, which at its core, must resolve 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 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", Justice Chandrachud said while concluding his lecture.
In his lecture, he elaborately discussed various judgments through which the Supreme Court played a central role in the realization of constitutional goals and the protection of the fundamental rights of the citizens.
"Would the country's social, political, and economic status have been the same but for the Supreme Court's interventions? The debate in individual cases aside, the answer to the question is in the negative", he remarked during the lecture.
Saying that "gender" has been an important subject with which the Supreme Court has engaged, the judge spoke at length about various judgments on gender rights.
"With the changing times however, the Supreme Court has attempted to move 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", he said.
Justice Chandrachud discussed the judgments in Anuj Garg v. Hotel Association of India (where the prohibition on employment of women in liquor shops was struck down), Babita Puniya v. Secretary, Ministry of Defence(where women were declared eligible for permanent commission in armed forces), Lt. Col. Nitisha v. Union of India(where the criteria for permanent commission for women was found to be furthering indirect discrimination), Patan Jamal Vali v. State of Andhra Pradesh (where the concept of intersectional discrimniation involving caste, gender and disability was discussed).
The judgments of the Supreme Court in NALSA and Navtej Johar cases on LGBTQ rights were also discussed.
"The struggles of the LGBTQ community have found a voice in the courts. The members of the LGBTQ community have lived, thrived, endured and loved through the beginning of time. In the face of stigma and prejudice, many have been forced to live their lives closeted from the "straight" society. In turn, they have created their own communities, found liberation in solidarity as they together resisted the heteronormative order and have crafted their own language of "being" when the labels that the society gave them fell short of the diversity that they had to offer to the world. LGBTQ liberation movements are gaining momentum today in India and have achieved certain legal milestones", he said.
Justice Chandrachud mentioned that in 2019, the Botswana High Court declared a law criminalising same sex relations as unconstitutional by relying heavily on Navtej Johar. He said that it is 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.
Justice Chandrachud also referred to judgments on disability rights. In Vikas Kumar v. UPSC, the Court held that an individual suffering from writer's cramp is entitled to the provision of a scribe for appearing in Civil Services Examination. In Ravindra Kumar Dhariwal v. Union of India, the Court addressed workplace discrimination against persons with mental health conditions and interfered with the disciplinary proceedings initiated against a person suffering from mental disability.
"Cases such as Ravindra Kumar Dhariwal give us an insight into how discrimination may stem from a number of factors and is fluid", he said.
The recent judgments emphasizing the need for a proper assessment of character antecedents and mitigating circumstances in death penalty cases and recognizing the rights of sex workers were also discussed.
"All of these instances and more show the path that the Indian Supreme Court has taken to protect human rights and civil liberties for different sections of the society in a democracy", he said.
