History Would Not Judge Our Constitution By Its Uniqueness But By The Transformation It Entailed :Chandrachud.J [Video]

The idea of any constitution finds its deepest meaning in the role of the people and their actions. The Constitution expects its citizens to fully realise its transformative potential. The transformative potential is important because our framers were also aware of the immense social challenges lying ahead of the times. The duty of transforming the society ultimately lies in the citizens. History would not judge our Constitution by the uniqueness that it exhibited but it would judge them by the transformation it entails.While the three wings of the State are charged with their own constitutional mandates, the mantel of achieving the transformative ideals of the Constitution lies equally with the citizens". said Justice DY Chandrachud on Friday"Our dialogue with our Constitution, as citizens, cannot be stultified or frozen. That is how you see that the Constitution, which was intended to be one with a strong Centre, has, over the years, come to be an increasingly federalist model which acknowledges differences, which recognizes the strength of the polity in the states where the real power resides today", He was addressing the motion 'A borrowed Constitution: fact or myth?' at the celebration of the birth centenary of veteran lawyer and jurist Nani Palkhivala in New Delhi. The observation assumes significance in the light of a hearing that is currently underway before a five-judge bench of the Supreme Court- the challenge to the introduction as a Money Bill of the 2017 Finance Act, which altered the mode of selection, appointment, removal, and the qualifications and terms of service of the Presiding Officers and Members of as many as 19 tribunals, conferring extensive powers on the Central government in this behalf. The purported intention having been to circumvent the voice of the Rajya Sabha, the Council of States, Justice Chandrachud had on Thursday reflected that in S. R. Bommai, federalism had been held to be a part of the Basic Structure of the Constitution, with Attorney General K. K. Venugopal replying that federalism is a vast motion which by itself could not govern the issue at hand. At Friday's event, citing the Constitution Bench judgments on inter-state trade and commerce in Atiabari (1960) and Automobile Transport (1962), the judge relayed how it has come to be appreciated that "the states must have a larger role to play in the shaping of the destiny of the nation". Favouring the practice of judicial borrowing from foreign courts, he explained, "Many of our core constitutional provisions, like the Fundamental Rights and those governing inter-state trade and commerce, are drafted in abstract terms with a view to allow for their growth with the changing times. The craftsmanship of a judge lies in infusing these words with the soul which we believe the Constitution possesses. In this context, it is useful to look at how the judges in other jurisdictions have similarly considered the problems before them. Through their experience, we question their assumptions which, in turn, serve as stimuli for us to question our own assumptions about our constitutional order. According to scholars, this is not borrowing, but using foreign material to critically re-assess our own constitutional ideas...""Justice Scalia of the US Supreme Court often said that foreign legal authorities are not binding and as such should not be used at all. He asked why the US Constitution, which he regarded as most unique in terms of its content and its history, should be confirmed in its interpretation with the readings of the rest of the world...I think that (by virtue of this line of thought), the bond of humanity that links us across jurisdictions, cultures and ideas is ignored...In overturning the decision of the Delhi High Court (de-criminalising homosexuality) in Suresh Kumar Koushal, our Supreme Court refused to engage with the foreign jurisprudence cited by the High Court. It did not consider it to be applicable to ourselves. In Navtej Johar (2018), we overturned this view relying on substantial amounts of comparative materials...The origin of the Basic Structure doctrine in Kesavananda Bharati was also rooted in the works of a German scholar...Similar to the borrowings of our Constituent Assembly, we have not considered ourselves to be bound blindly by these authorities, but utilized them to broaden our understanding of our rights. After all, The strength of our society is its plurality, and its ability to incorporate change even if it questions some of our Fundamental notions!", he continued. Finally, Justice Chandrachud urged that, "Judges can and rather should engage in foreign materials in interpreting our own Constitution" and that "doing so will not take away from the Indianness of the Constitution and its identity, because the migration of ideas only contributes to its evolution without transplanting its soul". In his address, the Apex Court judge endeavoured to, if not discharge, evoke questioning of the...

History Would Not Judge Our Constitution By Its Uniqueness But By The Transformation It Entailed :Chandrachud.J [Video]

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