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Are we fair to the Supreme Court?

In assessing the performance of the apex court, commentators sometimes lose sight of the stellar role played by the judiciary, say ANURAG TIWARY and PRIYANKA SINGH


Prime Minister Narendra Modi, in his address to the nation on June 7, while announcing a significant change in the vaccination policy stated that the Central Government would provide free vaccines to all citizens in the age group of 18-44.

This would seem like a random change in the vaccination policy. But it was not! The government was forced to take this decision after the Supreme Court in In Re Distribution of Essential Supplies and Services during Pandemic criticised the government’s policy by stating that “the exclusion of the age group of 18-44 years from the Centre’s free vaccination scheme was prima facie arbitrary and irrational”.

This was only one among several such criticisms made by the court against actions – or the lack of it – of the Central government or State governments during the pandemic.

Remember how the Madras High Court observed that the Election Commission’s officers should be booked for murder for putting millions of lives at risk during a pandemic by conducting elections in five states.

Even the Allahabad High Court remarked that the death of Covid patients due to lack of oxygen supply was no less than “genocide”. Unfortunately, there is a trend to criticise the top court in popular media these days.

These criticisms are not constructive but majorly personal. It is easy to criticise the top court of the country for its inaction, but it takes a lot to identify its efforts in not just furthering the Constitution’s agenda but also by forcing the executive to take actions where necessary. These are not isolated incidents of the courts using their powers of Judicial Review effectively. Back in 2017, the apex Court upheld the marriage of Hadiya and Shafin Jahan. Its interventions range from declaring privacy as a fundamental right to upholding the rights of LGBTQ members; from declaring Triple talaq as unconstitutional to permitting passive euthanasia; from recognising the Right to Access Internet to allowing permanent commission for Women Officers in the Indian Armed Forces.

Very recently the court also recognised equal coparcenary rights of daughters in Hindu Undivided Family property. These are some landmark transformations to the text of the Constitution which have gone on to solve some extremely convoluted present-day problems of our nation-state. And, at the outset, let’s be clear – doing that is not easy! Let’s go back to history to understand this clearly.

When we became a Republic amidst the holocaust of partition in 1947, the country was boiling and the citizens were grief-stricken by the bloodshed that had transpired after Independence.

The only ray of hope was to establish Rule of Law in the country by which citizens could be assured of their safety and security. The founders forged this by enacting a Constitution after long and exhaustive debates held for close to three years in the Constituent Assembly.

The Constitution became a bridge between an unstable past and an uncertain future. It was a brave and optimistic text and a document, which many said, was way ahead of its times. Our Constitution was the lengthiest written Constitution in the world and in times to come it was to act as the protector of every single individual right for which the country had once fought.

The responsibility of dispensing the mammoth task of enforcing the Rule of Law was laid on the Judiciary. It had to ensure firstly, that Constitutionalism prevailed in the country while also not shying away from transforming the text of the Constitution (transformative constitutionalism) as and when it was required. The founders were very clear that with changing times the social conditions of the country would also change, and the Constitution would have to adapt itself to the contemporary character of the society. They dreamt for the Constitution to function as a living document and not remain static and rigid in its approach.

A dormant text would inevitably fail in serving the purpose behind enacting such a document. The Supreme Court of India has therefore over the years involved itself in the jurisprudential search for transformative constitutionalism. A closer reading of judgments of the Supreme Court over the years go on to show how the Court has followed this model of transformation by positioning its ideology in the context of society and at the same time ensuring that Rule of Law and Due process are respected.

Building a nation full of optimism and ushering in the idea that peaceful co-existence is the right of all and not just the elite has only been possible because of the judiciary’s role in transforming the Constitution and adopting innovative methods of interpretation and judicial construction. The court has done this by being mindful of the times we live in and by respecting people’s ideas, feelings and circumstances. The court’s rich history is filled with instances of positive intervention from time to time that has led to our growth as an egalitarian society.

Let us look at Article 21 of the Constitution for instance. All that Article 21 textually says is that every citizen has the fundamental right to protect their life and personal liberty and that the state cannot take it away without procedure established by law.

But, over the years, Article 21 has been transformed and interpreted to mean a lot more than the conventional definitions of life and liberty. It encompasses within its fold today the Right to Dignity, Right to livelihood, Right to Privacy, Right to Shelter, Right to sleep, Right against solitary confinement, Right to clean environment, etc.

India’s dream was to bridge the gap between the past of a ruthless colonial rule where people were subjected to discrimination by the prevailing class-based society, and a future where there was freedom, equality and happiness.

The need was to give our people a sense of justice. At times, and rightfully so, it might seem like the Court isn’t doing enough. But for the intensity of flak that the Court receives and the amount of scrutiny that it is subjected to, it is only fair to suggest that it is doing a commendable job.

Achieving the goals of the Constitution is both a dream and a continuing journey for the judiciary. It certainly isn’t going to be judged by its performance during a particular year or during the pandemic either.

The court’s history will speak for itself.

The writers are from the National Law University, Visakhapatnam.