Correct legally, politically

Justice DY Chandrachud’s observations have enlarged the space for democracy in India

When a lawyer wanted justice from him, Oliver Wendell Holmes, the legendary American judge of the 19th century, had remarked that ‘this is a court of law and not a court of justice’. As with many statements concerning law, this too could be interpreted in many ways. But when Justice DY Chandrachud, chief justice of the Allahabad High Court, remarked on Sunday that judges should promote dialogue and dissent for democracy to function, it is clear that the concept of justice is now much more fleshed out in comparison to what it was in the 19th century.

Of late there have been instances that have caused disquiet in India regarding the scope of human freedom and its curtailment. The first relates to gay rights and it is refreshing that after turning down a high court order decriminalising gay sex, the Supreme Court said last month it would review the judgment. Next came a somewhat bemusing Delhi High Court verdict that granted bail to JNU Students’ Union leader Kanhaiya Kumar. Instead of dwelling upon free speech or the sedition laws, the judge asked the student to ‘introspect’ and contrasted his activities with those of soldiers dying on India’s borders. When put side by side with Justice Chandrachud’s observation that “the principles of dialogue and justice are a yardstick against which the justness of enforcement of a law could be gauged”, and that some of our laws “may have been laid down ages ago, in accordance with contemporary needs and challenges”, implying the colonial era, one cannot but detect two different streams of legal thinking at work.

Legal theory sees law as a “social phenomenon”. But a scholar has defined jurisprudence as “encompassing all kinds of general intellectual inquires about law that are not confined to doctrinal exegesis or technical prescription”. Justice Chandrachud’s position on law, democracy and freedom is akin to this. He has cited Nobel laureate Amartya Sen, who has talked of the difference between ‘niti’, which is a body of rules to be followed, and ‘nyaya’, which is justice in its broader scope. For Dr Sen, deprivation, on which he has written extensively, is a denial of justice. So in a country in which social welfare such as the public distribution of food, health, education, criminal justice, etc, is in a dilapidated state (documented by Colin Gonsalves in his book Kaliyug), Justice Chandrachud’s observations give hope for the future.