Written by Satvik Varma
Given the socio-political environment in which we find ourselves today, we often need to reaffirm that our Constitution is supreme. That it offers citizens many rights and freedoms and that it has corresponding duties. That rights can only be restricted in reasonable and limited circumstances. May our judiciary intervene to prevent state excesses and respect the letter of the law and the spirit of our Constitution. That while the justice system may be fraught with delays, these are only cracks and it is otherwise intact and – as several recent judgments from across the country have demonstrated – sufficiently independent. And no matter how much majority government we have, we are still a democracy of the people, for the people and by the people.
If the judgments handed down by the division chamber of Judges Siddharth Mridul and Anup J Bhambhani of the High Court of Delhi are indeed only bail orders, an analysis of their content and the case law they enact highlights the role of constitutional courts. That is, to interpret the law “on purpose” and in a way that advances the objectives of the legislation. Its job is to read the law in such a way that it strengthens individual freedoms while maintaining a balance with state security. This is to ensure that citizens’ rights granted by the Constitution and protected by law are not left to the mercy of executive supremacy. And at a time when society is polarized and fractured on many fronts, and ideology has reached a vanishing point, the courts will do whatever it takes to prevent abuse of the law and alleviate the anxiety that surrounds individuals.
For longer than we can imagine, legal and social theorists have been concerned with trying to explain the relationship between legal change and social change. They view the law as both independent and dependent and variable (cause and effect) in society and stress the interdependence of the law with other social systems. British social reformer Jeremy Bentham expected legal reforms to respond quickly to new social needs and restructure society. In contrast, German jurist Friedrich Karl von Savigny argued that it is the law that follows social change. Whatever point of view one can take, it cannot be denied that they influence each other. The law, after all, reflects the will and wish of society as we have seen in India in the decriminalization of homosexuality or triple talaq deemed contrary to our constitutional values or the removal of adultery or recognition. rights of the transgender community or granting equal status to women at the temple entrance.
This brings us to the fact that the interaction of law and society leads to the development of both.
Advancing this proposition, Nobel laureate Amartya Sen believes that legal development is not only about what the law is and what the judiciary formally accepts and affirms, but rather must “take note of the improvement in the law. the ability of people – their freedom – to exercise the rights and rights that we associate with legal progress. For Sen, freedom is both the primary objective of development and the primary means of development. Consequently, he argues that development is fostered in a democracy by the protection of human rights. Such rights, in particular freedom of the press, of expression, of assembly, etc., increase the likelihood of good governance. Therefore, the development of a nation cannot be regarded as independent of its legal developments.
Indian justice has made lasting contributions to our development, whether through its conceptualization of public interest litigation or simply by giving meaning to our fundamental rights by putting forward the intention of our legislators – for example, declaring the privacy a fundamental right. In this process, our courts have strengthened the Indian Federation, deepened our democratic ideas, facilitated work between different branches of government, and furthered the objective of the preamble to our Constitution of promoting brotherhood and maintaining unity and unity. integrity of the nation.
Viewed with this in mind, recent bail orders for student activists advance the cause of justice, protect the rights of citizens, thereby strengthening our democracy, address prevailing societal needs and thereby contribute to the development of our nation. After all, our courts do not operate in a vacuum and surely our judges have opinions about what is going on around them. Reports that less than 2% of those arrested under UAPA across the country in five years to 2019 were ultimately convicted (according to data compiled by the National Crime Records Bureau) must have weighed on judges, because the process then becomes Punishment. They must also have been informed that a challenge to the constitutional validity of the 2019 amendments to the UAPA, which qualifies individuals as terrorists, is currently pending where, and although there is no suspension of the law enforcement, the state did not even file its response. Should the courts not then restore the liberty of those wrongly accused? Doing well, Justices Mridul and Bhambhani have only maintained our democratic traditions and advanced our constitutional values. In doing so, they restored people’s confidence in our justice system.
In the future, it is hoped that whenever our democracy is in jeopardy, our judges, in accordance with their oath of office, carry true faith and allegiance to the Constitution and, without fear or favor, affection or malice, will respect the Constitution. If, in carrying out these duties, they embrace the role of judicial torchbearer, they will also contribute to the development of our nation. Each time that happens will indeed be a great moment in the history of our democracy.
The writer is a senior lawyer based in New Delhi