“When Creativity Dies, Values of Civilization Corrode”, says CJI Dipak Misra at M.C Setalvad Memorial Lecture

The Bar Association of India, on Thursday, hosted the annual M. C. Setalvad Memorial Lecture at the Hotel Hyatt Regency in New Delhi, with Chief Justice Dipak Misra, enlightening the audience on the “Dynamic Ascendance of Constitutional Rights- A Progressive Approach”.Describing Setalvad as a “legend”, Chief Justice Misra remarked how we were “humbled”, not “privileged”, to have been invited to deliver the lecture in his memory.He recalled how Setalvad, the then Attorney General of India, had declined to take Justice H. J. Kania’s place as the CJI, in honour of his friendship with the judge.“William Shakespeare, in one of his plays, wrote, ‘Kill all the lawyers!.I am of the strongest opinion that had Shakespeare written the play in the 20th century, he would have said ‘long live the lawyers!’”, remarked the Chief Justice in the context of Setalvad’s integrity as an advocate.He reminisced how even before the Advocates’ Act of 1961 was introduced, Setalvad had, upon once appearing before his father on the Original side, understood the impropriety of it and refused briefs in that behalf. The judge also hailed Setalvad as being the sole lawyer who returned the fee if he was unable to attend the hearing for any reason.Reflecting that the “Dynamic Ascendance of Constitutional Rights” is “a homage paid to the divinity of the constitutional rights”, the Chief Justice commented that these rights would become a dead letter without pragmatic interpretation.“The rights have to be developed in such a manner that they extend to the lowest wrong in the society”, the judge observed, adding that static interpretation of the rights would stunt the spirit of the Constitution.Chief Justice Misra stressed on the need for commitment on the part of the State and concreteness of its action in implementing the rights while noting that the Supreme Court, as the final arbiter of the Constitution, is the protector of the rights granted under the constitution.“The Supreme Court has realized its role quite early”, he commented. Elaborating, Chief Justice Misra advanced, “A Judgment by a seven-judge bench discarded a particular provision as being violative of the constitution- the provision has to flow from the constitution and nowhere else, it was held. Then another five-judge bench said that the spirit of the constitution can come from its silences as well. There was no conflict between these two judgments”.Explaining the distinction between Constitutional rights and Fundamental Rights, he advanced that the former are the genus, including not only the Fundamental Rights guaranteed under the Part III of the Constitution but also such rights as under Articles 243E, 243T and 300A.In Madhya Pradesh, by way of an amendment in the M.P. Municipal Corporation Act, 1956 and the M.P. Municipalities Act, 1962, the reservation in the local bodies in favour of women was enhanced from 30% to 50%. In Ashok Kumar Malpani (2009), the Chief Justice, then a judge of the High Court, had upheld the constitutionality of the amended provisions in the backdrop of Articles 14 and 15.“The argument was that the ladies are not capable of administration and shall depend on their husbands for the same.I had used the terminology that the argument is ‘preposterous’.The matter is before the Supreme Court and a stay was granted, but I will not hear the matter.”, asserted Chief Justice Misra to much applause.He quoted Edmund Burke, in so far as the English statesman had remarked that “a Constitution is an ever growing thing and is perpetually continuous as it embodies the spirit of the nation. It is enriched at present by the past influence and it makes the future richer than the present”“If a member of the citizenry feels that his right has been affected, it is the duty of the court to examine that feeling within the constitutional parameters and, I add politely, with the assistance of the bar.”, echoed the judge.In context of the phraseology ‘We, The People’ employed in the Preamble, he elaborated that it does not necessarily imply the members of the Constituent Assembly who were present there, but the people of the past and the future who enjoy the benefits of the constitution- “with this proclamation, the rights have become more dynamic as their orientation has to be associated with entire popularity”“In the Triple Talaq case [Shayara Bano v. UOI (2017)], we have made this progress that even a legislation can be called unconstitutional, that an Act could be arbitrary per se”, he continued.Moving on to discuss Article 19, Chief Justice Mishra opened with Romesh Thappar (1950), where the freedom of speech and of the press was held to be the foundation of a democratic government.“When creativity dies, the values of civilisation corrode”, he quoted from the recent verdict delivered on the ‘Padmaavat’ controversy by a bench headed by himself- “many states had issued notifications banning the screening of the film.I cannot conceive how a film can be banned unless it...

“When Creativity Dies, Values of Civilization Corrode”, says CJI Dipak Misra at M.C Setalvad Memorial Lecture

Mehal Jain

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