At an event marking the release of Constitutional Ideals: Development and Realisation Through Court-led Justice in Bengaluru, Justice B.V. Nagarathna reflected on certain basic ideals in the Constitution and their value in the present times, and Harish Narasappa and Dr Aparna Chandra spoke on the various themes of the book, including inter-institutional tensions, shifts in the role of courts, free speech, environmental jurisprudence, and the role of technology in access to justice.
DAKSH, a leading think tank and research institution focused on law and justice system reforms and access to justice, has highlighted evolving constitutional jurisprudence on the concepts of individual and collective rights, and their deprivation and balancing by courts, in its new book Constitutional Ideals: Development and Realisation Through Court-led Justice.
The book was released by the currently serving Supreme Court judge, Justice B.V. Nagarathna, at the Bangalore International Centre on Monday. Addressing the audience “as an advocate”, Justice Nagarathna reflected on certain basic ideals secured in the Constitution and indicated their value in the present times.
Justice Nagarathna observed at the launch, “We as a nation have come a long way, but we have a longer way to go before meeting all the ideals of the founder [of the Constitution]. Fortunately, there is a framework [for] achieving these ideals— a framework provided by the Constitution itself. A more democratic, equal, just and tolerant nation continues to remain an ideal in contemporary times.”
The launch was followed by a discussion on the themes of the book between senior advocate, co-founder of Daksh and a co-editor of the book, Harish Narasappa, and leading academic and associate professor of law at the National Law School of India University, Bengaluru, Dr Aparna Chandra. The panellists ventured into various themes of the book, including inter-institutional tensions, shifts in the role of courts, free speech, environmental jurisprudence, and the role of technology in access to justice.
About the book
Constitutional Ideals, a flagship publication of Daksh, is a curated volume of essays that features contributions from a diverse group of legal academics, researchers and practitioners. The book explores the ways in which courts have developed constitutional ideals in the face of political and social change.
The book covers a broad range of topics, including how judicial decisions have shaped the identity of citizens, the changing nature and scope of constitutional rights, and an examination of foundational principles such as criminality, equality and dignity. It also examines the judiciary’s engagement with other institutions, such as the legislature and religion.
No reduction below the Constitutional ideals
Justice Nagarathna termed the Constitution not just a legal document but also “a living tree”. According to her, the Constitution is infused with life through the courts, the executive, the Parliament and the people. The principles of anti-colonial and mass movements are infused in the Constitution, she noted. She stated that the Constitution has a “transformative quality” and is an evolving document.
Delving into the concept of Constitutional ideals, she highlighted that these ideals are set through the wisdom of the founding fathers of the Constitution and members of the Constituent Assembly, and are fundamental and ultimate, “permitting no reduction below them”. She opined that the object should be to implement the ideals, and to put them into practice through court processes and enactments.
Justice Nagarathna emphasised seven ideals that are necessary for democracy to thrive: elections, parliamentary proceedings, public debates, a strong opposition, autonomous institutions, free speech within the bounds of reasonable restrictions, and the functioning of the government within the bounds of the law.
She listed and explained certain basic ideals of the Constitution. According to her, the principle of federalism indicates that each state has equal political rights and is treated on an equal footing without any discrimination. She stressed that in this respect, the role of the Union government should be that of parens patriae (parent of the nation or the protector).
She went over the importance of inter-institutional balance and separation of powers among institutions as ideals of the Constitution. Checks and balances underpin the Constitution, she said.
On the independence of institutions as one of the basic ideals of the constitution, Justice Nagarathna remarked, “The country is as independent as its institutions”. She stated that the independence of the judiciary is the most cherished ideal of the Constitution. The personality of judges matters as it finds its imprint in the judgments delivered, she opined.
Further, she underlined citizen-centric constitutional ideals, that is, the ideals of justice, liberty, equality and fraternity. Emphasising the ideal of ‘liberty’, she stated that courts have been at the forefront of securing the constitutional right to liberty. She reflected on Articles 14 and 21 of the Constitution that espouse the ideal of liberty, and said that they were gradually expanded to include rights of the “highest amplitude”. “There is still a lot of space for courts to ensure more rights are recognised,” she remarked.
According to her, the basic constitutional ideal of ‘integrity’ is losing its value. While the country has grown economically, rampant acts of bribery, corruption and possession of disproportionate assets remain worrying phenomena, she shared.
The constitutional ideal of ‘secularism’, she commented, is rooted in India’s “culture”, “pluralism” and “spirit of neutrality”. She explained that ‘secularism’ indicates that our country does not owe loyalty to any one religion— where the religious majority does not enjoy preferential treatment by the government, and the rights of the minority communities are protected.
In conclusion, Justice Nagarathna noted that we have a long way to go to achieve all our constitutional ideals.
Shifting approach of courts
During the panel discussion between Narasappa and Dr Chandra, Narasappa focused on the concept of ‘inter-institutional tension’ and said that a certain degree of tension between institutions is considered important to maintain good relations among institutions.
Narasappa referred to the Maharashtra political crisis and opined that while we are focused on the relationship between the judiciary and the executive, we are not equally focused on the Parliament and the judiciary. Various elements of the functioning of the parliament, including the holding of votes and disqualification are being questioned by the courts, he stated.
Dr Chandra referred to the concept of ‘development’ or ‘movement’ and remarked that the book brings out three main movements. On the first such movement, she pointed out the shift in the approach to the Constitution— from the courts regarding the Constitution as a charter of values to considering it a rule book, and interpreting it in a technical and doctrinal way. She explained that by approaching the Constitution as a book of rules, the Supreme Court has been able to interpret the concepts of dignity and equality in diverse ways, which it would not have been able to if it had stuck to the fundamental rights as roots approach.
Secondly, Dr Chandra analysed a shift in the role conception of the court. She emphasised that while at its inception, the court regarded itself as a ‘checks and balance institution’— to check the overstepping of executive and legislative powers – the role of the courts has shifted “to co-govern the nation”. How the judiciary deals with public interest litigation is the best-known example of such co-governance by the court, she stated.
Dr Chandra further opined that although it is not ideal for the courts to limit themselves as only a ‘checks and balance institution’, it is important to question the expanding power-building and co-governing role of the courts.
Delving into the third shift, Dr Chandra opined that there is an institutional shift for the Supreme Court, from being a cohort of eight judges sitting in large Benches to the current court of 34 judges, mostly sitting in division Benches. Such an institutional change has been a catalyst for other shifts in the approach of courts to the Constitution and its role conception, she added.
Courts’ role on governance imperative
Further leading the panel discussion, Narasappa focused on Dr Chandra’s observation of the shifting role of the court to dwell on matters of the executive. Narasappa questioned whether it is imperative for courts to follow a “march hand-in-hand” concept, and whether courts should be concerned about the governance imperatives.
Dr Chandra weighed in on the issue raised by Narasappa and remarked that with the change in the public’s demand for justice, courts need to change to avoid a legitimacy crisis. She observed that the requirements of the time demand courts to step into a larger arena of issues. Courts have been fairly nuanced in the perception of their roles and the remedies available, by pushing the executive to account for their actions, including for not following their policies in socio-economic matters, she noted.
However, Dr Chandra raised the concern that the legitimacy that courts have gained with respect to the socio-economic rights jurisprudence has overshadowed some problematic remedies that courts have provided with respect to civil liberties.
By referring to the Supreme Court’s decision in G. Sundarrajan versus Union of India and others (2013) on the balancing of rights (right to development and right to life), Dr Chandra enunciated, “As language and values have expanded, on the one hand, it can allow the courts to interrogate rights more deeply, but on the other hand, it can allow greater restrictions on rights if the role of the courts is not clear.”
Technology and access to justice
Further, Narasappa ventured into the accelerated use of technology through video conferencing due to the COVID pandemic and its impact on access to justice. He raised the question of present and prospective problems with technology, including its impact on privacy. To this, Dr Chandra responded that technology can be a good “leveller” and “enabler” to justice if there is repeated interrogation on whether technology is meeting its purpose. She, however, cautioned that those without access to technology are left behind in availing its benefits.
Further, Dr Chandra highlighted that while our criminal justice system is based on the notion of reform where people are capable of justice, technology enables everything to be a part of the digital identity, compromising the ‘right to be forgotten’. She, thereby, urged the need to mediate technology and consider its value in terms of access to justice.
On the role of artificial intelligence chatbot in assisting courts, Dr Chandra opined that since law is based on authority, ChatGPT is seen as a “black box” with no known source, raising questions on its reliability.
Narasappa also raised the question that since it is open for lawyers in certain courts to appear through video conferencing, would participating in proceedings, particularly cross-examination, carry the same weight as appearing in person. Notably, Dr Chandra, sharing her insights, stated that technology would allow the space to rethink how business itself is conducted, particularly whether the judicial processes (requiring the judges and parties to be face to face) even need to be synchronous.