Updated: June 15, 2021 9:04:27 am
The quality of democratic governance anchored in sacrosanct human rights is determined by the integrity and resilience of constitutional institutions established to sustain and nurture its purposes. The role and relevance of these institutions is tested in difficult times, particularly when the equilibrium of sovereign power dispersed between co-equal constitutional institutions is in question. The catastrophic pandemic is one such moment.
Cries for justice, founded in the promise of Articles 14 and 21 of the Constitution, have brought under the scanner, the role of the higher judiciary as the designated protector of fundamental rights. And this, when judicial leadership of the moral universe of law and society is suspect.
In recent months, however, the somewhat faltering record of constitutional courts in defence of civil liberties, vacillation in deciding politically sensitive cases and reluctance to censure executive apathy to human suffering, has been redeemed through elevating judicial pronouncements, demonstrating that national sensitivities and judicial conscience do not lie apart.
Flooded with requests by desperate citizens for humanitarian intervention in the wake of an unprecedented calamity that has redefined the boundaries of grief and the limits of fortitude, the courts have intervened proactively. Illustrations of judicial relief include directions for oxygen supply to gasping patients, provision of essential medicines, hospital beds and ambulances for transportation of the sick and dead, welfare of children who have lost a parent, ensuring dignity of the dead, facilitating priority vaccination for the vulnerable, directions to decongest jails and regularity in the payment of old age pension to the elderly.
However, the crowning glory of judicial function at this time are the recent orders of the court, dated April 30 and May 31, passed in a suo motu writ petition by a bench of the Supreme Court headed by Justice DY Chandrachud. These orders will remain etched in public memory and judicial record as exemplars of judicial statesmanship.
In a compelling articulation of constitutional logic and morality that has prompted a review by the Central government of its flawed vaccination policy, the court has ensured a just and non-discriminatory vaccination regime. An excerpt from its order of April 30 speaks for itself: “Prima facie the rational method of proceeding in a manner consistent with the right to life (which includes the right to health) under Article 21 would be for the Central Government to procure all vaccines and to negotiate the price with vaccine manufacturers … we believe that the central government should consider revisiting its current vaccine policy to ensure that it withstands scrutiny of Articles 14 and 21 of the Constitution.” In its order, the court also expressed “deep distress” at the targeting of individuals using social media platforms to express themselves and issued a stern warning to government agencies against oppressive prosecution of citizens in distress.
Batting for preserving a “collective public memory” through which “the present speaks to the future”, the court endorsed a narrative in which the future will “choose justice over the “jurispathic” tendencies of the moment, echoing Judge Cardozo’s celebrated reminder that “the process of justice is never finished, but reproduces itself generation after generation”.
Despite the initial missteps, therefore, the judicial response to the pandemic’s many challenges must gladden our hearts. Constitutional courts have leaned to uphold human rights, navigating the complexities in maintaining the equilibrium of dispersed power, in furtherance of democracy and the Constitution’s preambular promise of a just society. Building upon the national charter’s dignitarian philosophy expounded in Puttaswamy (2017), Romila Thapar (2018), Nambi Narayanan (2018), Navtej Johar (2018) et al, the final court has declared that government policy dealing with the pandemic “must be bound by the human rights framework ….”, asserting thereby “limits to the limitations on human rights.”
Responding to the felt sensitivities of a nation in pain, the court has refused to be hemmed in by arguments of “institutional incapacity” and the usual caution against interference with the government’s policy prescriptions. Its rulings have confirmed that India’s constitutional democracy has moved beyond the “majoritarian premise” and that the court’s interventions are, to recall Ronald Dworkin, “in the service of its most conscientious judgment about what democracy really means”, signalling at the same time that the court “is no usurping tyrant, trying to cheat the public of its democratic power …” (Law’s Empire, 1986).
In an assertion of its plenary jurisdiction as guardian of the Constitution, the apex court has reiterated that the purpose of judicial function is to hold government true to the constitutional standards of reasonableness. Drawing a clear distinction between policy and principle while delineating the boundaries of its authority, it has left none in doubt that in the event of conflict between the two, the latter must prevail, “not out of any desire to tilt the legislative authority in a crusader’s spirit but in discharge of a duty plainly laid down upon them by the Constitution” (VG Row, 1952).
The challenges of our times demand that constitutional courts vigorously discharge their mandate as custodians of the constitutional principle, secure in the belief that the moral integrity of their judgments will prevail over the impulses of transient majorities. Abnegation of judicial authority is not an option when defence of the Constitution demands judicial intervention. For supremacy of the rule of law to remain the defining distinction of democracy, law must “work itself pure” through judicial pronouncements that lend weight to its majesty.
The judicial branch of the Indian state has its task cut out, even as the debate on the boundaries of judicial power in a constitutional democracy rages on. For the moment, we can reasonably conclude that the limits of judicial power will be determined by the constitutional courts themselves, hopefully in a harmonious reconciliation of constitutional authority with the sovereign will.
This article first appeared in the print edition on June 15, 2021 under the title ‘A fine judicial moment’. The writer is senior advocate, Supreme Court, and former Union Minister for Law and Justice. Views are personal
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