Chief Justice, Dr. DY Chandrachud Is Wrong, Supreme Court Judgments Cannot Be ‘Public Property Of The Nation’
By
Nizamuddin Ahmad Siddiqui, New Age Islam
13 January
2024
The Supreme Court In Recent Times Has Behaved
In An Unconvincing Manner. Its Methodology In Arriving
At The Ayodhya And
The Kashmir Verdicts Has Raised Many Eyebrows.
In This Context, It Becomes Essential To Understand And Estimate The Contours
Of Judicial Function, More Importantly Judicial Discretion, And Ethics.
------
Chief
Justice of India, Dr. DY Chandrachud
-----
In his latest interview, the Chief Justice, Dr. DY
Chandrachud, makes interesting observations on the function of the apex court.
In the context of the abrogation of article 370 his observation that a judgment
delivered by the Court becomes ‘public property of the nation’ stands out.
What does
it mean when the CJI equates judgment of the Court with ‘public property’?
Strange as it might seem, the phrase does not carry any substantive meaning in either
legal
or political
theory. There exists no understanding of what could be called ‘public
property’, except that criminal law protects it as state-owned property. Our
understanding of judgment as public property thus leads us nowhere.
The CJI might
instead have used ‘public property’ symbolically. However, to understand this
we must attach it with the latter part of the phrase – ‘of the nation’. It is
interesting that the CJI gives meaning to public property by attaching it with
nation, and not people.
What is a
nation and how is it different from a state? While a nation is a product of
culture fed by the psychology of belonging (with its social, political, and
economic implications), the state is a formal entity that confers authority,
distributes it, and accepts safeguards against it. In a strictly legal sense,
the courts are concerned with the formal institutions of the state, how they
function and in what ways they can help flourish the lives of the subjects of
the state. In this exercise the courts are guided by a formal document called
the Constitution whose interpretation is guided by legal and not political
tools of understanding.
The legal
tools, while aiding the Court in interpreting the constitution, do not engage
in value judgment over a certain way of life as a citizen. The Courts in their
everyday function seldom venture into the idea of nationhood. When they do, the
exercise is guided by constitutional values and the history of
constitution-making. For instance, the preamble to the Indian constitution
situates nationhood in the ideal of fraternity.
How does
the CJI define this nationhood? In the interview, he does not. But then his
recent remarks on how certain cultural traditions and ideals
populate
our understanding of the constitution do give us an
understanding of what he might have meant. While outside the Court the CJI is a
citizen of this country who enjoys the freedom of personal thought and
expression, it cannot be denied that his personality still carries the weight
of justice. His behaviour informs the image of the court, and his words inspire
the call for justice.
If
nationhood, defined in a certain way, indeed informs our understanding of the
constitution, it becomes difficult to detach the legality of statehood from the
culture of nationhood in the longer run. The constitution becomes a historical
document and culture dominates its interpretation over and above the commitment
to legality. If judicial function is guided by history, justice gets
historicised as well.
The CJI might
have engaged in oratory, but it cannot be devoid of any
meaning. The Supreme Court in recent times has behaved in an unconvincing manner. Its methodology in arriving at the
Ayodhya
and the Kashmir verdicts has raised many eyebrows.
In this context, it becomes essential to understand and estimate the contours
of judicial function, more importantly judicial discretion, and ethics.
The Supreme
Court is a court of justice. This is what allowed it to go beyond the usual
rules of constitutional interpretation and foreground a basic structure to the
constitution. The purpose of basic structure is to seek protection from
transgressions by other organs of the state. It does not regulate the behaviour
of the judiciary. It is assumed that this aspect is guided through an inherent
approximation of the role of judiciary with the delivery of justice. This is a
function in hope and consideration – the fundamental aspect of judicial role in
a constitutional democracy. This role does not seek justification through any additional
values.
What sort
of arguments could be labeled as legal arguments is an interesting enterprise.
Every other argument must pass the filter of the legal language to gain
validity in the judicial discourse. For instance, every endeavour to seek constitutional
protection of citizens must attract the legal category of fundamental rights,
and every such invocation must be tested against the existing jurisprudence on
the subject.
Similarly,
the questions of belongingness are discussed through citizenship, and the
values that allow such scrutiny exist in the language of the provisions, their
constitutional history and in the previous judicial pronouncements. Any
additional element routed through judicial discretion is read with strict
observance. There exists no other value nor any other motivation for the
constitutional courts in deciding the disputes before them.
Where the
judicial psyche is guided by the culture of nationhood, the legality of
statehood gets threatened. If culture attains the justification of law, the
line separating the nation from the state gets blurred, and judicial decision
becomes a tool to homogenise the subjects of the state.
If indeed
judgments are public property, they belong to the people. If people in
constitutional terms are to be equated with nation, the ideal of fraternity
must inform such interpretation, and not any other identification.
The
emerging trend demonstrating this substantive shift from law to culture in the
judicial psyche sounds dangerous. It threatens the existence of constitutional
secularism as much as the interpretative tradition of the positive law.
-------
Nizamuddin
Ahmad Siddiqui teaches at Jindal Global Law School, OP Jindal Global
University, Sonipat.
URL: https://newageislam.com/current-affairs/cji-chandrachud-judgments-property-nation/d/131506
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