Constitutional Ideals

Preface

It is clichéd to state that the Indian Constitution is a living document, but in the 72 years of its existence, it has proved to be remarkably resilient and a source of empowerment for Indian citizens. As the longest-surviving constitution in a postcolonial country, it has been marshalled by Indian citizens and groups to redress their grievances and protect their rights. The judiciary has been called upon to interpret the rights of the citizen with regularity. Constant political, social, and religious upheaval, combined with the executive’s quest for industrial development and globalisation, as well as rapid scientific and technological changes, have meant that there are always new challenges posed to the existing meaning of rights and attempts made to refashion rights to fit the dominant ideology’s worldview. From time to time, a weak executive has resulted in the judiciary dealing with questions that go beyond hard law, in the realm of political, economic, and social policy, and occasionally, religion. At other times, the judiciary has deferred to the executive and legislature more than it ought to have and has either failed to consider in time, or refused to consider at all, pleas for intervention. Effectively, the Indian Constitution was produced and reproduced in the everyday encounters of the Indian citizen with the State, as Rohit De describes in his book A People’s Constitution. Citizens’ political action, especially in the form of public interest litigation, has influenced the courts and led to significant interpretations of the Constitution.1 It, therefore, becomes necessary to study the work of the judiciary regularly and understand the manner in which the courts respond to various assertions of rights in the face of constant change.

DAKSH works in the area of judicial processes, delays, and access to justice. Our previous publications have largely been in those areas. It is not possible, however, to study judicial processes, delays, and access to justice in isolation. Understanding the societal and institutional context as well as the performance of the judiciary in its entirety is a necessary background. A study of the judiciary’s performance, particularly a fact-based analysis, as the arbiter and protector of people’s rights is essential to properly understanding judicial processes, delays, and access to justice and vice versa. In this curated volume of chapters by various contributors, we attempt to survey the ways in which the judiciary has interpreted and given meaning to the Constitution in various political, social, and economic circumstances. Each of these chapters throws light on different aspects of our Constitution and the manner in which our judiciary has dealt, and continues to deal, with those aspects. The first theme in the volume, titled ‘The Individual within the Constitution: Demonstrating Citizen-Centric Justice’, addresses the dignity and freedom of the individual. Recognised as one of the most significant features of the Constitution, they represented a radical break from India’s past. Vikram Aditya Narayan’s chapter examines the use of ‘dignity’ as an aspirational value in constitutional judicial reasoning in India. He notes the modest role accorded to the concept of dignity in the text of the Indian Constitution and then traces how it has been expanded and moulded by judges over time to expand and enforce rights. He also interrogates subjectivity in the use of dignity in judicial reasoning. Anindita Pattanayak and Harish Narasappa explore judicial interpretations of ‘equality’ in their chapter. Given that it is a fundamental constitutional value and a foundation for several other rights, equality is a multi-layered concept. Considering that it is a complex social question outside the constitutional framework and with the judiciary’s limited sphere of influence on social life, the courts are only called upon to decide the validity of the actions of the State that are allegedly incompatible with equality as a constitutional right; the courts are therefore not always equipped to find the right answers to questions posed to them. The authors explore how Indian courts have turned to more fundamental values, such as constitutional morality, distributive justice, and dignity, to reach equitable outcomes that focus on equality as the recognition of the intrinsic worth of individuals. Anagha Sarpotdar’s article explores the development of the jurisprudence around workplace sexual harassment in India, focusing on five judgments of the Delhi High Court. Sexual harassment law is an exciting area of constitutional inquiry because it is a domain where courts evolved redressal mechanisms even in the absence of enabling legislation. Sarpotdar traces the evolution of this area of law from the Vishaka judgment to the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The right to free speech is a significant site of contestation between the citizens and the State and among different groups of citizens. Leah Verghese examines the right to speech and expression as it applies to books and movies in the background of rising acceptance of the heckler’s veto. She examines the escalating aggrandisement of the executive and the use of prior restraints. The law of contempt of court also being increasingly used as a tool to curb inconvenient speech and expression. M.V. Sundararaman and Varsha Manoj examine the ambiguous judicial interpretations of the law governing contempt of court in India. The authors explore the scope and ambit of criminal contempt and how courts have balanced it with the right to freedom of speech and expression. The second theme explored in this volume is ‘Group Identities: Balancing Rights in a Diverse Society’. In their chapter, Prannv Dhawan and Jwalika Balaji handle the subject of the abolition of untouchability in the Indian Constitution. They examine certain judgments on untouchability to explore the issue of caste sensitivity in judicial reasoning and the manner in which courts have expanded the understanding of caste-based atrocities using Article 17 of the Constitution. Religious practices and conflicts are increasingly being contested in courts. Sandhya P.R. analyses how courts have balanced individual and institutional rights while dealing with access to places of worship with a focus on women’s access. She examines how courts have used tests, such as the essential religious practices test and the anti-exclusion test, to determine thorny issues of religious customs and practices. In recent times, issues arising out of environmental litigation in the Supreme Court have had wide-ranging effects, given the interconnectedness of the environment with economic development, planning, and public health. Justice G.R. Swaminathan’s article is an overview of how the Supreme Court has expanded the right to life through its environmental jurisprudence. Although environmental protection was not foremost in the minds of the framers of the Constitution, he notes that the courts have filled the lacunae in existing law by borrowing from principles in other jurisdictions and being flexible on the locus standi of the petitioners in public interest litigations. The third theme is titled ‘Systemic Conundrums: Reimagining Rights’ and studies procedural conundrums related to the Constitution. Constitutionalism depends on procedures as much as it does on the substantive provisions of the Constitution. In his chapter, Prashanto Sen examines how a more participatory form of democracy can help prevent democratic backsliding in India. He studies the courts’ engagement with participatory democracy and asks whether there is scope for further judicial engagement with the concept given the contours of the Constitution. Nikhil Majithia takes a fresh look at the principle of separation of powers between the Parliament and the judiciary and the question of whether courts are overstepping their limits. He examines this issue by looking at the involvement of courts in government formation after elections, functioning of the Parliament, expulsion of members of legislative bodies, and money bills. Umakanth Varottil and Rahul Sibal review the constitutional jurisprudence evolved by the Indian Supreme Court in the context of the Insolvency and Bankruptcy Code. Despite corporate bankruptcy and insolvency not being a traditional site for constitutional litigation, the Supreme Court has actively determined how equities amongst various stakeholders will be decided using constitutional values. The authors explore how the Court has balanced its judicial review function with deference to the Parliament’s wisdom in the economic sphere. Sithara Sarangan and Anindita Pattanayak study how the judiciary has engaged with preventive detention, which the Constitution sanctions, as a powerful weapon in the executive’s hands to curb dissent by placing people in custody even before an offence is committed. It is entrenched in the law enforcement machinery of the union and state governments through legislation. They explore the judiciary’s deference towards the executive in such cases in the context of challenges to other laws restricting free speech. The fourth theme examined in this volume is titled ‘Institutional Responses: Constitutional Values in Flux’. Although the drafting of the Constitution was completed in a certain post-colonial era, the values it espouses were intended to stay relevant over time and under changing circumstances. Aakanksha Mishra examines fundamental rights in the context of globalisation by exploring challenges to the liberalisation of the Indian economy and increasing privatisation. She explores trends in the horizontal application of fundamental rights against private parties in the context of the growing power of large corporations and the private sector. The criminalisation or de-criminalisation of certain acts, omissions, or transactions reflects a great deal about a society’s values and perception of the criminal justice system’s goals. Shraddha Chaudhary looks at the process of criminalisation or de-criminalisation by courts in India to discern if there is a uniquely Indian way to approach such questions. Courts need to examine these questions through a constitutional lens because the process of criminalisation expands the power of the state and law enforcement agencies and is thus fundamentally connected to the rights of citizens. Two chapters included in this section examine the functioning of courts during an unprecedented public health emergency, the COVID-19 pandemic. Sharada Naganand and S.S. Naganand examine the judiciary’s role in upholding constitutional values during the trying times of the pandemic. They do this by conducting a comparative analysis of the functioning of constitutional courts in India before and during the pandemic. They find the courts’ extension of the right to life during this time, while adapting to the changing circumstances during various lockdowns, to be noteworthy. Varsha Mahadeva Aithala and Siddharth Peter de Souza examine the judiciary’s work performance during the COVID-19 pandemic by reviewing the impact of administrative planning on access to justice in exceptional circumstances. They draw lessons from how virtual systems should be designed to ensure access to justice and fairness that will be useful in designing frameworks for virtual administration of justice. Each of the chapters highlights that the judiciary is increasingly being asked to decide contested concepts in the background of intensely complex political, economic, and social conflicts. Interpreting constitutional rights is an arduous task even in the best of times. The difficulties are more pronounced in societies that are struggling with multi-dimensional conflicts. Judicial interpretation of constitutional rights has the capacity to determine the direction of political, economic, or social change in the background of such conflicts. Conversely, such conflicts also influence judicial interpretation. This volume highlights this symbiotic and dynamic relationship and its impact on rights jurisprudence in India.

Foreword

Our Constitution has undergone more than a hundred amendments over the years, beginning from the first year of its existence. While some amendments were necessitated with the passage of time and are, in a sense, not of considerable significance, others have been wide-ranging and extensive. Except for the dark period during the internal emergency (1975–1977) the amendments have been positive and have furthered the rights of citizens. In its turn, the Supreme Court has cemented the rights of citizens through a dynamic interpretation of the Constitution while portraying it as a living document. This has been particularly so in respect of the fundamental rights guaranteed by Part III of the Constitution. Constitutionalism has engaged judges, lawyers, and academics over the years and this collection of well-researched and scholarly essays has the potential of firing the imagination of legal researchers to study and reflect on themes peripherally touched upon by the contributors. I believe that such reflective writing is necessary because our Constitution is the fulcrum that regulates and governs the lives of diverse communities, cultures, and peoples in a sub-continent of nearly 150 crores. Essays such as these, which make up this compendium, point us not only in the direction of an evolving constitutional jurisprudence but also its larger impact on society and justice seen through the lens of the courts. The carefully selected themes in the compendium cover a broad range of identities. First, the individual and the rights of individuals. The Supreme Court reminds us time and again that life is more than animal existence. While it is well-nigh impossible to identify all the constituents of ‘life’, there are some basics that we recognise and which differentiate us as humans from animals. The essays on some of the more important facets of individual rights lay the foundation for a seamless journey into group and community rights and the deprivation of rights through historical wrongs and how the courts are attempting to correct the balance. The theme on constitutional procedures is of considerable relevance today, with Speakers of Legislative Assemblies and Governors of States sparring with constitutional conventions and morality. The essays in this section make for interesting reading and throw light on the gaps that need to be filled for the effective working of the Constitution. The final theme deals with constitutional values. Have we somehow lost our way in understanding the Constitution? How have the courts repeatedly reminded us of our constitutional ethos? These are some critical questions that this section delves into, and the answers provided compel us to introspect. I hope this compendium generates interest in legal literature and stimulates greater participation by scholars in our understanding of the rule of law and constitutionalism.

New Delhi Justice Madan B. Lokur
Former Judge
Supreme Court of India