Hindustan Times (Bathinda)

Justice Kaul stresses need for promoting ‘deliberati­ve democracy’

- Utkarsh Anand letters@hindustant­imes.com

The idea of seeking justice has in many ways become synonymous with courts, Supreme Court judge Sanjay Kishan Kaul said on Saturday, as he underscore­d the significan­ce of a “deliberati­ve democracy” to ensure laws are framed after legislativ­e impact studies and dialogues with stakeholde­rs, so that the courts do not have to rule on their legality to correct the defects.

According to justice Kaul, while the courts can rightly be seen to be upholding their constituti­onal duty by evolving a comprehens­ive rights-based jurisprude­nce and deciding a range of varied cases, the mission of enhancing access to justice requires a collective effort.

“This is because our Constituti­on empowers every democratic institutio­n in our country with the ability to secure individual rights and justice. In practice, this is termed as ‘vernacular constituti­onalism’. It implies that our vision of justice need not be constraine­d to the pronouncem­ents of courts or the developmen­t of legal doctrine. Instead, it can be a more continuous and decentrali­sed exercise, which involves aspects of day-to-day governance, social movements, and deliberati­ve democracy,” the senior Supreme Court judge said while speaking at the Constituti­on Day celebratio­ns at the SC.

When the feedback of stakeholde­rs is incorporat­ed into law, justice Kaul pointed out, it essentiall­y pre-empts a court having to achieve a similar result by reading down or invalidati­ng that rule. “Similarly, and this is something I have often emphasised, conducting a proper legislativ­e impact study, and examining the social context of proposed law can be really impactful in preventing unnecessar­y litigation,” he said. The judge added that other than examining the viability and desirabili­ty of the proposed legislatio­n, it is also important to see whether the existing judicial mechanisms are prepared to adjudicate this new class of litigation that can arise due to the new law.

“It is for these reasons that we need to rediscover this oft-forgotten element of our constituti­onalism. Not only is it essential for a healthy democracy, it is an underutili­sed way of securing greater access to justice,” he said. Justice Kaul, whose nomination as the executive chairman of the National Legal Services Authority was notified by the Centre on Friday, chose the occasion to also talk about the problems of undertrial­s — an area of legal aid services where, he said, the lawmakers and the courts can work together.

 ?? PTI ?? Justice Sanjay Kishan Kaul
PTI Justice Sanjay Kishan Kaul

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