Delivering Justice K.T Desai Memorial Lecture in Bombay at the Bombay High Court organized by the Bombay Bar Association, Supreme Court Justice pointed towards some important notions of constitutional morality and the prevailing constitutional culture in India.
Justice D Y Chandrachud highlighted the importance of individualism and liberty.
He remarked on the ever-increasing division in the Indian society on the basis of caste and religious lines:
“A constitutional culture is based on the understanding that a constitution unifies a population, beyond the ones in one’s sphere of acquaintance.”
“When we deny the power of love to people on grounds of religion and caste, the Constitution weeps. Exactly this happened yesterday when a Dalit groom was forced to step down from the top of a horse. When we read of such incidents, the constitution weeps”
He remarked that making of the constitution for India was a “culmination of desire for self-governance”. His words echo the constitution makers K.M Munshi and Dr. Ambedkar that we cannot have an Indian constitution with a servient outlook. Justice D Y Chandrachud remarked:
“The Constitution fails when a cartoonist is jailed for sedition. When jail instead of bail is granted to a blogger who was critical of religious architecture, the constitution fails”
The conditions in which an independent India was born into existence, gave way for a jurisprudential view, which is largely deferential to the state and it was a catalyst to the ever-expanding state powers. From preventive detention laws and schedule 9 of the constitution to the 42nd amendment which obliterated the right to property as a fundamental right, the judiciary ceremonially stood blind to the brutal murder of the most fundamental rights under the Indian constitution. The Indian judiciary was never the shield but the ceremonial priest at the expressed consent of whom the rights of Indian citizens were burnt at the altar.
“When a mob lynches a person for the food that he or she eats, it is the constitution that is lynched.”
D Y Chandrachud said “Art. 368 reflected the march of time and ability of the constitution to adopt the changing times. However, the flexibility of our constitution needs to be balanced by the need to protect the constitution’s character insulated from the whims of the government.”
He further highlighted the importance of democratic institutions, Panchayati Raj and local self-government.
Justice DY Chandrachud outlined some strong elements of individual rights and liberty in his KT Desai memorial lecture.
In Nani Palkhivala’s words, “The constitution represents a charter of power granted by liberty and not the charter of liberty granted by power. Liberty is not the gift of the state to the people. It is the people enjoying liberty as citizens of a free republic who have granted power to the executive and the legislature.”
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