A golden period for the Supreme Court

Why the Supreme Court and Justice Chandrachud, in particular, deserve applause and gratitude

The Supreme Court is widely considered the saviour institution of Indian democracy. It’s often the only one to stand up for the constitutional rights guaranteed to Indian citizens. But how many people are aware that the present time is one of the shining golden periods of the Court?

Consider for a moment the landmark judgements delivered in the last year. Starting with the recognition of privacy as a fundamental right and the declaration of triple talaq as unconstitutional, the Court has proceeded to decriminalise homosexuality between consenting adults, scrap the crime of adultery, open the doors of Sabarimala to women of all ages, give legal sanction to passive euthanasia and open its own doors to live streaming. In the Hadiya case, it recognised the right to change faith as a fundamental right of choice and in the Aadhaar case, it’s struck down several exasperating implementations of this concept whilst also reading it down. Few courts have done so much in such little time.

What is perhaps less well recognised is the steps the Court has taken to stand up for freedom of expression. In his judgement refusing to ban the Malayalam novel Meesha, former chief justice Misra quoted Voltaire’s famous dictum: “I may disapprove of what you say, but I will defend to the death your right to say it.” This principle clearly underlies the Court’s protection to Salman Khan’s Love Yatri from criminal action, the refusal to ban Kancha Ilaiah’s book Samajika Smugglurlu Komatollu, the quashing of a criminal case against Priya Varrier for winking in a film song, its resistance of sikh religious bodies who wanted action against Nanak Shah Fakir and its refusal to allow Rajasthan and Madhya Pradesh to delay screening of Padmaavat. In each case, the right of the individual was upheld over the dissenting demands of the wider community.

Now, in many of the cases I have cited it was the opinion of Justice D Y Chandrachud that stood out. Like a beacon of light his judgements cast illumination dispelling shadow and doubt.

Let me cite three laudable positions he has upheld. In the Sabarimala case, he gave primacy to individual freedom over group rights “The right of a denomination must be balanced with the individual rights of each of its members. It would be impossible to conceive of the preservation of liberal constitutional values while at the same time allowing group rights to defy those values.”

In his dissenting stand on what’s called the ‘urban-naxal’ matter, he bluntly declared: “We cannot sacrifice liberty at the altar of conjectures.” He added: “We must differentiate between armed struggle against the government and expression of dissent by a section of people because of generations of suppression. Please keep this distinction in mind while presenting evidence. The shoulders of all, be it the government or the Supreme Court, should be broad enough to take criticism and dissent.” In his actual judgement he went even further: “Dissent is a symbol of a vibrant democracy. Voices in opposition can’t be muzzled by persecuting those who take up unpopular causes.”

In the Hadiya case, Justice Chandrachud ruled in full support of the right of consenting adults to get married without anyone questioning their decision or the validity of that bond. “When two freely consenting adults have decided to get married,” he wrote “can the Court go into the rightness or correctness of the partner or the justness of marriage?”

Indeed, no misdemeanor or lapse is too small to escape his censure. On the obnoxious police practice of public briefings, often when they lack the evidence to support their allegations, he said: “Police briefings to the media have become a source of manipulating public opinion by besmirching the reputations of individuals involved in the process of investigation. What follows is, unfortunately, a trial by the media.”

All of this is, of course, known to us from newspaper reports. But they were spread over several months. It’s when you see it collectively that the sheer wealth of detail becomes almost revelatory. No doubt, the Court’s pusillanimity during the Emergency cannot be forgotten but that has now receded into the historical past. Today, the Supreme Court and Justice Chandrachud, in particular, deserve applause and gratitude.