Constitutional Courts Provide Democratic Space For Reasoned Dialogues Especially In Times Of 'Fractured Polities' : CJI DY Chandrachud

Chief Justice of India Dr. DY Chandrachud in his recent lecture at Cambridge University, United Kingdom spoke extensively on his idea of 'transformative constitutionalism' and the role of Indian Courts in bolstering a democratic space for discussing diverse views. He expressed how Courts in Constitutional Democracies like India had a key role in ensuring that the marginalized get a voice, especially in a time where one can witness "fractured polities across the globe". "In a constitutional democracy we are also providing a democratic space for a reasoned dialogue, which I believe is extremely important particularly in a time where you have fractured polities across the globe. In fractured polities, it is very crucial that people must have a voice, the marginalized particularly must have a voice, and a place where irrespective of the outcome there is a perception that these voices will be tested on the basis on reason." The CJI also explained how with the help of writ of continuing mandamus, the Constitutional Courts ensure that the guidelines laid down are implemented properly. This, he analyzed , was in contrast to the western practice of implementing Court orders only through contempt proceedings. Recalling the judgement PUCL v. Union of India where the Top Court declared the right to food as a Fundamental Right under Article 21, the CJI explained how the writ of continuing mandamus was used to execute the directions on government food policy and public distribution systems." We go beyond the statement of doctrine to ensure that our orders are enforced not by using the contempt jurisdiction which I believe is not the best jurisdiction to exercise in a democratic polity but the jurisdiction of issuing a writ of continuing mandamus, so that we require governments to come back to us and report the extent to which our judgements are being enforced. Very often you find that something which we designed in the judgement is very difficult to enforce because we are not conversant with the ground reality. Therefore we have ourselves the ability to modulate the views which we formulate and the directions which we give." The Interpretative Approach Of The Courts Cannot Be Pigeonholed Into Judicial Overreach Or Activism The CJI addressed how the decision in PUCL invited criticism by few scholars on terming the continuing orders of the Supreme Court as 'judicial overreach' and how often such decisions open the debate on where to draw the line between judicial activism and overreach. The Chief Justice expressed that the key role of the Constitutional Courts is to interpret the law to its best and such an approach cannot be compartmentalized or 'pigeonholed' into judicial activism or restraint. According to him, such extreme binaries do not exist when seen from the point of view of a judge. " Very often when we talk about the transformative potential of the judicial function, there is a tendency for the debate to be clothed with the arguments of judicial restraint and activism. In today's address I will not be trenching on the realm of judicial restraint and judicial activism, because I don't believe in these binaries, because if you sit as a judge, you realize that there are no strict or dividing lines and these binaries as they exist in the law, they do not exist in the life. So the pigeon-holing of the models of the adjudication into restraint and activism based on the outcome the case, the remedies employed, in my opinion it is the 'interpretative approach which the court follows." On Transformative Constitutionalism Touching upon the main idea of Transformative Constitutionalism, the CJI opined that in the Indian context, the Constitution is seen a living and expanding document, which adapts and transforms according to changing social expectations. In order to impart transformative constitutionalism, he explained that one has to deviate from the approach of Originalism where the interpretation of the law is strictly from the point of view of the intention of the constitution makers. "Originalism as a model of adjudication is inadequate because Constitutional provisions do not deal with all provisions with specificity, and I say that in context of the Indian Constitution because it's a huge blueprint of governance..." To explain the growing trend of transformative constitutionalism, the CJI gave the example of how after the court's decision to strike down S. 377 of the IPC in the landmark case of Navtej Singh Johar v. Union Of India, another petition was filed demanding matrimonial rights for the LGBTQ+ community which ultimately led to another round of deliberation in Supriyo v. Union of India. He stressed stated while the majority opinion in Supriyo refused to recognize same-sex marriages, the legal deliberations paved way for a larger public discourse in the society about the changing perception towards and demands of the LGBTQ community. This according to him was quintessential in a transformative...

Constitutional Courts Provide Democratic Space For Reasoned Dialogues Especially In Times Of 'Fractured Polities' : CJI DY Chandrachud

Anmol Kaur Bawa

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