Public Deliberation Will Always Be A Threat To Those Who Achieved Power In Its Absence: Justice DY Chandrachud [Video&Full Text]

"The conception of human rights has radically evolved over the years, gradually redefining the relationship between the individual and the State. The adoption of legally enforceable human rights marks a turning point in human history. They represent the rejection of a culture of authority and impunity and instead shine a light on our potential to live together with dignity in free and self-determining societies."

He said that our present paradigm of civil and political rights acts as a crucial barrier against oppression and atrocities.

"The journey begins with the adoption of the Magna Carta in the 13th century, which recognized the principle that even royal government had limits, and certain liberties must be guaranteed by law. The text proclaimed: 'No free-man shall be seized, imprisoned, dispossessed, or outlawed, or in any way destroyed; nor will we condemn him, nor will we commit him to prison, excepting by the legal judgement of his peers, or by the laws of the land.' This clause has been interpreted as providing the right to a trial by jury and the right to due process. Most significantly, it represented a limitation on the absolute authority of the State, the monarchy of the day, to act with impunity against its citizens. The rule of law would stand in the way."

He added,

"Perhaps a touch ironically for us in India, it was the right to property that was chosen as the crown jewel for rights to be protected against the capture by the State, most notably by John Locke. It was a strategic masterstroke. In a world where the monarchy was the single largest landowner and regularly stripped people of their lands and titles, emphasising property as the inherent right of all persons undercut the monarchy's power of eminent domain. It also ensured that the idea of human rights had the support of powerful landowners and the burgeoning merchant class. This anecdote is a reminder that while legal disclosure on human rights often seeks to divorce itself from the politica, the two often share a symbiotic relationship.

He added, the history of human rights protection by the judiciary in India has centred around Article 21 of the Constitution and its interpretation by the Supreme Court and that our court has over the years recognized economic and social rights such as the right to shelter, right to privacy, right to health and medical care, and right to live in a pollution-free environment as being a component of the right to life.

He further said,

"The scope of these rights has also gradually expanded over the years, often relying on international treaties and instruments. In K.S. Puttuswamy v. Union of India, the Supreme court declared the right to privacy as a constitutionally protected right, referring to Articles of the International Covenant on Civil and Political Rights, the UDHR and the European Convention on Human Rights. Similarly, in Common Cause v. Union of India, the court recognized the right to die with dignity as a facet of Article 21. "

He opined that the protection of human rights in India, however, has never been limited to the judiciary citing the example of the operation of the Right to Information Act where the citizens, their elected representatives and courts all work together to further human rights protection.

He further examined few cases which dealt with the rights under Article 21. He said that at the time of drafting the Constitution, the framers were acutely conscious that the civil and political rights guaranteed by the Constitution in Part III formed only one amongst many ways in which the Constitution protected the individual. He then quoted Dr. Ambedkar :

" Ask those who are unemployed whether what are called fundamental rights are of any value to them. If a person who is unemployed is offered a choice between a job of some sort, with some sort of wages,...and the exercise of his right to freedom of speech, association, religion etc., can there be any doubt what his choice will be?"

He added, today our human rights discourse is often framed in the language of freedom from the State, and freedom to act in a particular manner. The Directive Principles, however, point to a far more expansive definition of freedom that is the true goal of a substantive human rights regime.

While saying about the vision of freedom that Directive Principles capture, Justice Chandrachud added,

"Yes, a citizen's freedom is abridged when they are detained or shackled. But what about when education becomes so expensive it cannot be afforded by a vast majority of our population. Or when a woman is compelled to work at home and not accorded financial independence? The substantive content of freedom contemplated by our Constitution is not limited to the freedom to speak freely or not be detained in a cell, but also to be free from the c=shackles of poverty, patriarchy and caste both in the public and private sphere. In the public sphere, it is the freedom to not have the State interfere in one's life and in the private sphere it is the freedom from domination by the other private actors, whether they be a husband, an employer or a religious leader,"

He opined,

"On any given day, anywhere between thirty and sixty files their way onto my desk. I note that an increasing number of petitions frame a host of social, economic, environmental and political issues in the language of human rights under Part III of the Constitution, often using Articles 14, 19 and 21 as a tagline, affixed in a cavalier manner. We must guard against this dilution of our human rights discourse. Casually asserting rights where they are not implicated can lead to a dilution of our human rights disclosure by framing issues in absolute terms, polarising public debate, and stifling important consensus and deliberation. At its worst, framing all social issues in the language of rights, even where there exist important countervailing interests, can lead to important rights talk being characterised as mere expressions of desires and wants."

He told, when we assert our right to livelihood or clothing or roads, it is a plea that such things in an absolute form is to ignore the rights and interests of our fellow citizens and enter the realm of infinite and impossible desires. He further emphasized the use of the courts as the first line of defence to solve complicated social issues is a reflection of the warning power of discourse and consensus building in our society. He added,

"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 forums and placed before the court. Our ever expanding list of rights risks trivialising the essential core of rights without really advancing the important social issues that we have reconceptualised as rights. We have to ask whether the undifferentiated language of simplistic rights talk is the best way of addressing the vast spectrum of injustices that exist in our country."

Further emphasising on the right to information, justice DY Chandrachud said, among the fundamental principles of environmental governance are principles that foster access to information; access to justice to the community which is liable to be affected and governance based on the rule of law. Access to information, particularly to impoverished and marginalized communities is of vital importance and that communities must have access to all information in order to be satisfied that a proposed project meets standards of safety; that the site upon which the project will not result in a destruction of the natural habitat. He added, denial of information is the surest way to deprive communities of human rights and leads to a sense of alienation. Access to information is a source of empowerment and hence participatory decision must be an ingredient of environmental governance in a true sense of the term.

In conclusion Justice DY Chandrachud added,

"Refining our rights rhetoric to include participative processes and as well as substantive outcomes is one step towards recognising the complimentary roles the political and legal spheres of the Constitution play in protecting our human rights. Public deliberation will always be especially threatening to those who achieved power in its absence. However, recognising the value of deliberative processes in exposing weak arguments, identifying the misuse of power and ensuring that human rights are lived beyond the cloistered halls of courts and universities adds a powerful element to our human rights discourse. It is a reminder that we will not await to be shocked by terrifying tale of human rights abuse, but rather scrutinise the actions of those in power every day to ensure that such abuses never occur in the first place."

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