Tuesday, Feb 07, 2023

Anti-terror laws not to quell dissent; SC role counter-majoritarian: Justice Chandrachud

Stating that the Supreme Court “plays the role of a counter-majoritarian institution”, he said it is the Court’s “duty to protect the rights of socio-economic minorities”.

dabur karwa chauth, dabur karwa chauth ad, dabur same sex karwa chauth ad, justice chandrachud dabur ad, india newsJustice D Y Chandrachud.

SUPREME COURT Judge Justice D Y Chandrachud has said that “criminal law, including anti-terror legislation, should not be misused for quelling dissent or for the harassment of citizens”.

Stating that the Supreme Court “plays the role of a counter-majoritarian institution”, he said it is the Court’s “duty to protect the rights of socio-economic minorities”.

Justice Chandrachud made these comments while speaking on ‘Role of the Supreme Court in protecting fundamental rights in challenging times’ at a virtual conference hosted by the American Bar Association with the Society of Indian Law Firms and Chartered Institute of Arbitrators on Monday evening.

Referring to the Supreme Court’s interventions amidst the pandemic, he said the congestion in prisons was among the issues taken up. “While it is important that prisons are de-congested because they are highly susceptible to becoming hotspots for the virus, it is equally important to examine why prisons are congested in the first place. The criminal law, including anti-terror legislation, should not be misused for quelling dissent or for the harassment of citizens,” he said.

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“As I noted in Arnab Goswami v. The State of Maharashtra & Ors, ‘Our courts must ensure that they continue to remain the first line of defence against the deprivation of liberty of citizens. Deprivation of liberty even for a single day is one too many. We must always be mindful of the deeper systemic implications of our decisions’,” he said.

Justice Chandrachud said the SC’s “interventions have changed the course of Indian history — be it in protecting civil and political liberties which cast a negative obligation on the State, or in directing the State to implement socio-economic rights as… obligations under the Constitution”.

“While some have termed these interventions of the Indian Supreme Court as ‘judicial activism’ or ‘judicial overreach’, the Court plays the role of a counter-majoritarian institution and it is its duty to protect the rights of socio-economic minorities,” he said.


“As the guardian of the Constitution, it has to put a break where executive or legislative actions infringe fundamental human rights,” said Justice Chandrachud.

Touching on the concept of separation of powers, he said that while the “Judges of the Supreme Court of India are careful to maintain the separation of powers… the scheme of checks and balances through supervision results in a certain degree of interference by one branch into the functioning of the other”.

Elaborating, he said that “instead of imagining separate branches of government isolated and compartmentalised by walls between them, we should view their working taking effect in a complex interactive, interdependent and interconnected setting where the branches take account of, and coordinate with, the actions of the other”.


The Supreme Court, he underlined, “has to act in furtherance of its role as sentinel on the qui vive and respond to the call of constitutional conscience and it is this role that prompts it to address the challenges of the 21st century, ranging from the pandemic to the rise of intolerance, features which we find across the world.”

Justice Chandrachud, who headed a three-Judge Bench which heard petitions challenging the Centre’s vaccine policy, said the Supreme Court, while dealing with the issue, “was cautious that it could not transgress into the domain of policymaking and usurp the role of the executive”.

“However”, he said, “in a humanitarian crisis, it could not stand as a silent spectator. It adopted a ‘bounded deliberative approach’ seeking justifications from the government for its policy, which it reiterated must be bound by a human rights framework, which in this case implicated the right to life under Article 21 and the right to equality under Article 14 of the Constitution”.

He said “the Court’s approach of questioning the rationale of the policy decisions of the government helped in grounding the dialogue between the government and the Court regarding the existence of the policy within the constitutional framework”.

On India and the US, Justice Chandrachud said the two countries “have shared a deep social, cultural and economic relationship since the Independence of India, given our common ethos and values”.


He said the US, “as the ‘leader of the free world’… has been the torchbearer in promoting liberty, speech and expression and religious peace amongst the communities that call it home”, and India and the US “represent these ideals of multicultural, pluralist societies where their Constitutions have focussed on a deep commitment to and respect for human rights”.

First published on: 14-07-2021 at 01:10 IST
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