The Supreme Court failed to uphold the spirit of anti-majoritarianism in the Ayodhya case, said Dinesh Dwivedi, Senior Advocate of the Supreme Court.
"By and large, the Supreme Court has been upholding the Constitution and anti-majoritarianism. My strong feeling is the only time Supreme Court failed in upholding anti-majoritarianism was when they utilized the power of Article 142 in the Masjid matter and decided in favour of the Hindu-majority. This is where I feel they failed", said Senior Advocate at the Supreme Court of India, Dinesh Dwivedi, at a webinar conducted by LiveLaw on the topic "The Courts and Constitutional Values".
Commenting on the Ayodhya verdict, he said that there could be two reasons which could have played at the back of the mind of the judges.
"One, either the judges were themselves going with the flow of majoritarianism. Or, perhaps they might have felt that unless they give it to the Hindu majority, the dispute will never be solved. That was totally incorrect thinking. SC has to abide by the Constitution and law. I certainly feel SC failed the Constitution by succumbing to majoritarianism", he added.
Apart from Dinesh Dwivedi, the webinar also hosted Former Judge at the Supreme Court of India, Justice Kurian Joseph, and Senior Advocate at the Supreme Court of India, Meenakshi Arora. It was moderated by Advocate Avani Bansal. "Constitutional morality and values are not twinkling stars which are present in the up above the sky. They are prescribed expressly. The Constitution is an organism; we must believe that each and every part must be made functional. The Constitution pronounces the supremacy of the Constitution", he said.
Dwivedi emphasized that the constitutional values are enumerated in the Preamble to the Constitution itself. "The source of Constitutional values is ingrained in our Constitution. All concepts are enumerated in the Preamble, such as liberty, fraternity, dignity etc. One cannot exist without the other. All rights have equal values."
Social morality is not higher than constitutional morality, he said. Elaborating on the concept of "We The People", he said that a democratic republic should serve the welfare of the people in accordance with the principles ingrained in the Preamble.
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Dwivedi further underlined the importance of Constitutional values in serving for the welfare of the people and informed the audience about the conjunction of different values stipulated in the Preamble, such as justice, liberty, dignity and fraternity.
"The Preamble is the source of all Constitutional values. 'We, the People' includes everyone, irrespective of any segregating factor. Then it says that we are a democratic republic. The government has to function for the welfare of the people. The Preamble further elaborates how the general welfare will be achieved; that is how good governance is achieved." Moreover, Dwivedi highlighted on the idea of equal rights for everyone. "For this purpose, we must understand that all rights are equal; there is no hierarchy of rights. We cannot say that Article 19 is superior to Article 14, or 14 is superior to 25. All the rights have equal values and all together they will help the powers that be to achieve public welfare." He commented that imbibing constitutional values could hinder a judge from acting as per human prejudices.
"Let's take the case of a devout Hindu judge; he might have some leaning. However, if he is true to his Oath and allegiance to the Constitution, before giving primacy to his devotedness, he will have to see the Constitutional values. A judge is also a human being, born and built in the same society as we are. They cannot exist like an island and certain aberrations are always there. But, Constitutional morality would hinder his movement or digression"
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During the session, Dwivedi also commented on the developments relating to the sexual harassment allegations against the former CJI, Ranjan Gogoi. He stressed that the lady has been reinstated with full wages, which indicated that there was no wrongdoing on her part.
"If it was an attempt to destabilize the judiciary, why was a suo moto contempt not taken? The enquiry report is also not out. I don't understand how the Constitution was upheld in this issue", he said.
Before the conclusion, he commented on the dangers posed by an absolute government, and stressed on the need to find a right balance between absolute governance and chaos.
"In my experience, whenever there is an absolute government, it always runs haywire, and demolishes all institutions around it. We saw it during 74,75,77(referring to Indira Gandhi rule during emergency). We had our ADM Jabalpur days. Now, after a long time we have an absolute government with a vast majority..and we can see press freedom is in danger...institutions are in in danger...take the case of our institution. Are we not finding that the collegium system is not being allowed to function. Why? Because an absolute government is there. For any constitution or governance system to become more mature, it takes time before we realize what the right balance is . We are still wavering between absolute governance and chaos. Lets hope, during our life time time itself, from whatever little is left in it, we can see the right balance".
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