Courts have the duty to ensure that the law remains relevant amid shifting societal norms, Supreme Court Judge Justice B R Gavai said while underscoring the transformative value of the Indian Constitution.
“…When faced with multiple interpretations, the court opts for the one that best advances the constitutional values. Central to this transformative ethos is the role of the Supreme Court, which has to act as the custodian of the Constitution and the ultimate arbiter of justice,” Justice Gavai said in an address at the Columbia Law School on March 26.
Speaking on “75 Years of Transformative Constitutionalism”, he delved on how the Constitution reflects the transformative intent, the legislature’s commitment to uphold this through some of its enactments and on how the SC upheld the ethos of transformative constitutionalism through its interventions.
He said, “The transformational value of the Constitution is neither limited to ending colonial oppression nor is it concluded with specific socio-economic objectives. Instead, it is a perpetual ideal, a mindset that fosters an environment where dialogue and debate thrive, novel ways of existence are continuously explored and forged, embraced and challenged, and where change remains unpredictable, yet the concept of change persists.”
Pointing out that the “Constitution is mounted on the ideals of equality, liberty and fraternity that reinforce the ideals of social democracy and tend to transform society for the better”, he said that its framers “gave the most importance to the provisions of equality”. Justice Gavai said, “The transformative potential of the Constitution is more prominent in the accreditation of social and economic rights, which are enshrined in Part IV of the Constitution, as the directive principles for the state policy”.
He also referred to laws such as The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013, The Transgender Persons (Protection of Rights) Act, 2019, The Child Labour (Prohibition and Regulation) Act, 1986, The Prohibition of Child Marriage Act 2006, The Right of Children to Free and Compulsory Education Act, 2009, The Rights of Persons with Disabilities Act, 2016, The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 among others as proof of the legislative intent to uphold the transformative intent of the Constitution.
Touching on the role of the Supreme Court in advancing transformative constitutionalism, Justice Gavai explained how it had broadened the scope of the fundamental rights chapter of the Constitution and affirmed privacy as a fundamental right. He also cited the rulings allowing women permanent commission in the armed forces, ensuring their reproductive choices and affirming the constitutionality of reservation policies as testimony of the court’s role.
He said “the intervention of the Supreme Court in educational access and equity has had far-reaching implications for India’s quest for universal education”.
Justice Gavai underlined that the Constitution “is evidence of the transformation of the governance structure in India from colonialism to democracy” and from the “order of the Queen” to the “will of the people”.
He said that “while democracy needs to be protected and upheld at all times by the people, the courts play a seminal role in reinforcing the supremacy of the Constitution and determining the validity of legislative and executive actions on the touchstone of the principles of the Constitution. The principles of democracy and judicial review are intertwined and complementary. These form the core of the basic structure of the Constitution”.
He also said that the SC had “underscored the necessity of the compliance of the electoral process with the principles of the Constitution and the laws for the success of democracy” and that “in doing so, it has repeatedly stressed on free and fair participation of voters in the electoral process”.
Referring to the recent judgement of an SC Constitution bench also comprising him in the electoral bonds case, Justice Gavai said that disclosure of information on the bonds to the voter cannot be restricted on the grounds of the informational privacy of the financial contributions to political parties.
“The expansion of the freedom to speech and expression under Article 19(1)(a) to include the right to information is a crucial recognition for the citizenry to effectively participate in the elections, which, in turn, is an intrinsic feature of democracy,” he said.
‘Criticism fine, false perception not’
New Delhi: Justice B R Gavai on Thursday highlighted the issue of a clip of the court’s proceedings being allegedly doctored to show CJI D Y Chandrachud in poor light. Attending a discussion hosted by the New York City Bar Association, he said that fair criticism of judgments is fine but there was unwarranted criticism of judges through doctored clips. He shared how a doctored clip of the CJI adjusting his chair was spread to create a false perception that he left the court in the middle of a hearing.
He recalled that when he was appointed as a judge in the Bombay High Court in 2003, he was a leading lawyer, and that there was no judge from Dalit/Scheduled Caste community in the HC. “That may be one of the factors in my appointment as a HC judge,” he said. He further said his appointment to the SC in 2019 was made solely on the account of giving representation to the SCs. “If not for giving representation to SCs, I would have been elevated maybe two years later,” he said.
