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Tuesday, November 24, 2020

Dignity lies within. Failure of our representatives and institutions cannot deter us

The dignitarian Constitution’s custody is entrusted to the joint endeavours of the three branches of government, but the recent record of our liberal democracy suggests an institutional deficit in the advancement of constitutional goals.

Written by Dr Ashwani Kumar | Updated: November 9, 2020 9:36:14 am
Indian constitution, Modi govt, Global Dignity Day, human dignity, supreme court of india, narendra modiRecent events involving the executive and judiciary have raised concerns about the institutional role in advancing the Constitution’s dignitarian promise.

On Global Dignity Day (October 21), India joined the world in celebrating human dignity, about which Thomas Paine had famously written, “the sun never shined on a cause of greater worth”. Regrettably, more than seven decades after Independence, we face a legitimate interrogation about our faltering record in the advancement of a defining national aspiration. Instances of rape, encounter deaths, custodial torture, abuse of elders and children, deprivation of basic human rights and the resultant loss of dignity of the marginalised and the suborning of fundamental freedoms by a muscular state mock the constitutional promise of fraternity, with individual dignity as its principal constituent. Even though the Supreme Court, as a designated guardian of the constitutional conscience, has declared that the right to life under Article 21, sans dignity, is like “a sound that is not heard… ” (Navtej Johar, 2018), a continuing loss of dignity in its various manifestations remains a painful reality.

Recent events involving the executive and judiciary have raised concerns about the institutional role in advancing the Constitution’s dignitarian promise. An unprecedented communication by the Chief Minister of Andhra Pradesh to the Chief Justice of India, complaining about interference by a senior Supreme Court judge in the administration of justice by certain judges of the Andhra Pradesh High Court, has compromised the institutional integrity of the higher judiciary. Making public his communication, on a sensitive subject under consideration of the CJI, the chief executive of the state has not done justice to his office either.

Whether a criminal contempt action against the CM can alone redeem the prestige and dignity of higher judiciary is debatable. Judging from the public response to the contempt proceedings in the Prashant Bhushan case, only an unanswerable case of criminal contempt founded on clear malafides on the CM’s part would invest the punitive judicial remedy with credibility and a moral appeal. Whether or not the case for contempt is “clear and beyond reasonable doubt” (Baradakanta Misra, 1974) will depend upon “a noetic look at the conspectus of the features and… a constellation of constitutional and other considerations…”(Mulgaokar, 1978). A credible resolution of a complex situation will indeed test the wisdom of the wise as well as the inter-institutional capacity to advance constitutional justice. A restrained and sparing use of unusual jurisdiction combining “the judge, jury and the hangman” (SCBA 2008), in a spirit of “majestic liberalism” adds to the legitimacy of contempt jurisdiction and, till recently, such has been the court’s preferred approach (Mulgaokar, Vijay Kurle, 2020).

This is because the authority and dignity of the higher judiciary as the custodian of constitutional principle rests not on the “coercive power of the judges but the deference and respect which is paid to them and their acts from an opinion of their justice and integrity”(Baradakanta Misra). The majesty of courts is located in the objectivity, consistency, and intellectual integrity of their judgments which must remain open to public scrutiny and fair comment. Judicial dignity is a function of the community’s responsive chord to its pronouncements based upon a shared sense of justice. Judicial excessivism or abdication are both fatal to judicial prestige.

Unchecked media trials, especially on electronic and social media, repeatedly transgress constitutional boundaries with a devastating infraction of the right to privacy and mock the promise of fair trial and legal due process under Article 21. Despite several binding interdicts by the highest court against parallel media trials adversely impacting the course of justice (Mirajkar, 1965, Sahara, 2012), the brazen illegality continues. The Sushant Singh Rajput and Kangana Ranaut episodes are jarring illustrations.

The profound pronouncements by the court in M. Nagaraj (2006), K.S Puttaswamy (2017), Romila Thapar (2018), Nambi Narayan (2018), Navtej Johar (2018), Tehseen Poonawalla (2018), et al, espousing human dignity as the foremost constitutional principle remain no more than pious declarations of constitutional intent. Questions about the apex court’s vacillation and institutional incapacity to enforce its judgments without which the declaration of law is meaningless have diminished judicial prestige.

A seemingly resigned acceptance by the highest court of the routine and audacious negation of the legal principles of proportionality, neutralisation, necessity and postponement of publication enunciated by it (R Rajagopal, 1962 and Sahara, 2012) in relation to media coverage of cases under trial is inexplicable. This is particularly so because in Bhramajeet Singh Sharma (2005), the court recognised presumption of innocence as a human right and declared unhesitatingly in Sahara that the freedom of expression under Article 19 (1)(a) is subject to the requirement of fair trial (Article 21). A welcome note of caution by Justice Chandrachud in his dissenting judgment in Romila Thapar is eloquent: “Lofty edicts in judicial pronouncements’’, declared the judge, “can have no meaning to a citizen unless the constitutional quest for human liberty translates into securing justice for individuals… [The Court] “…cannot be oblivious to the overriding constitutional concern to secure the dignity of the individual’’.

The dignitarian Constitution’s custody is entrusted to the joint endeavours of the three branches of government, but the recent record of our liberal democracy suggests an institutional deficit in the advancement of constitutional goals. But we need not give in to despair because we know that our dignity lies within ourselves. The failure of our representatives and democratic institutions to secure it cannot deter us from pursuing the dignitarian agenda.

The writer is former Union minister for law and justice. Views are personal

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