If The Dialogical Role Of Law Is Forsaken, Law Becomes A Diabolical Instrument: Chandrachud.J At IDIA Conference

“Just as a novelist shapes the characters of his story, Judges rely on facts to craft a narrative that they deem to be most reasonable”, articulated Supreme Court Justice D. Y. Chandrachud at the recently-organized IDIA Law Annual Conference on ‘Law and Storytelling’ in New Delhi.Justice Chandarchud was delivering the keynote address on “The ‘Narrative’ of Justice”.“Judges are intuitive reasoners and, I admit, that the thinking is unconscious on several occasions...Judges have a strong sense of which way a case should be decided, but good judges explain their decision...They should be considered artists in their own right. They employ craftsmanship with creativity to a set of facts and articulate them, they engage with their audiences and resonate with their lived experience...Sometimes, we feel that nothing can be done in a particular case as there may have been injustice but no legal violation per se. But the hearing of the story is as significant a part of the healing process as the outcome. Sometimes what is important for an individual is that she was heard in court and not that she lost the case- that the sadness and the injustice, which perhaps the system was too weak to confront, was heard...”, he continued.AKZ_IlKeJI&feature=youtu.beThe judge iterated that though Precedents serve as a chain of command and coherence which limits the discretion that each judge has, But no matter how authoritative the precedent, the judge still possesses the discretion to “distinguish” it, thanks to the human ability to do what is right and cast way a previous decision that is deemed unacceptable.He stated that the Law must come to terms with the competing narratives of reality; that the Conflict in the society is not between right and wrong but between right and right, between wrong and wrong, and even between right and power, power of an extent which has its own legitimacy and defines itself as a right because it is in accordance with law.“As judges, we are faced with the challenge of deciding on two sets of rights. This calls for a Deeper understanding of the social realities from which the disagreement arises...How can a judge construe varied narratives of identities, of experience and of circumstances, to further justice? This engagement with each narrative doesn't take way the objectivity of the law. The Rule of law requires a consistent application of the prior principles of law, and we are conscious of this as we hear human stories. We know that the hallmark of the rule of law is the determinacy of the law, that there should be certain outcomes from which there may be no aberrations. As a judge, especially in our country, the challenge is that in the endeavour towards consistency in the law, the individual injustices are not lost, which would then question the legitimacy of what we do...”, said the apex Court judge.“If the dialogical role of the law is forsaken, the law becomes a diabolical instrument, which spells grave danger. The grave danger of interpreting the law without compassion is that you lose the individual narrative that the law is intended to sub-serve...How can a court deal with racial segregation without recounting the lived experiences of the people who were subjected to the travesty? How could the plight of manual scavengers be deal with without recording the human experiences of social exclusion and boycott?”Referring to his separate opinion in the recently-rendered five-judge bench verdict on the constitutionality of section 377 of the IPC, he explained,“In my separate judgment, I recognise the identity of the petitioners. If we had not highlighted the human experiences, a facially-neutral provision of the law would have bypassed judicial scrutiny...One of the arguments advanced in the case was that since there were only a minimum number of prosecutions under the section, there was no point in striking it down. But the real concern there was not of the criminalisation of the act but of the silencing of a set of identities. The retention of the provision perpetrated a culture which would be antithetical to our Constitution. This stereotype given rise to by the provision perpetuated a culture of homophobia making it impossible for the victims of the abuse to access justice...”“One judge may see the constitution as a break from the colonial past, while others believe in the continuity of the law which, they think, ensures the stability of democratic fabric. Certain Others believe that the constitution is a transformative instrument...Alongside the transfer of political power from the colonial regime to democracy, there was also a movement of social transformation. Unless we view the constitution as a fundamentally transformative institution, we will lose the essence of its values, ideals and its spirit- That it was intended to be for the people...”, averred Justice Chandrachud.He discussed how untouchability, as contemplated in Article 17 of the Constitution, is caste-based, But in his...

If The Dialogical Role Of Law Is Forsaken, Law Becomes A Diabolical Instrument: Chandrachud.J At IDIA Conference

MEHAL JAIN

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