Lack Of State Intervention Allows Dominant Social Groups To Oppress Historically Marginalised Sections : CJI DY Chandrachud

Chief Justice of India DY Chandrachud, while delivering the keynote address on “Identity, the Individual and the State: New Paths to Liberty,”  said that lack of State intervention allowed socially dominant groups to oppress historically marginalised sections.

“Traditionally, liberty has been understood as an absence of State interference in a person’s right to make choices. However, contemporary scholars have come to the conclusion that the role of the State in perpetuating social prejudices cannot be ignored. In effect, where State does not intervene it automatically allows communities with social and economic capital to exercise dominance over communities who have been historically marginalised.”

The address was a part of the 36th LAWASIA Conference 2023, a four-day event that started on November 24 at Bengaluru. The event’s theme is ‘Everything, Everywhere, All at Once.’

Other dignitaries that were part of today’s session were Chief Justice of the High Court of Karnataka Prasanna B. Varale, Senior Advocate Amarjit Singh Chandhiok, and Senior Advocate SS Naganand, who was the Co-Chair of the Conference.

At the outset, CJI broadly charted out the points on which he addressed the audience. This included the historical context in which liberty was understood and the limitations of this understanding.

CJI pointed out that while the relationship between the State and liberty has been widely understood, the task of establishing and explaining the relationship between identity and liberty is incomplete. Thereafter, he went on to explain liberty as understood traditionally and its limitations.

Throwing more light on traditional liberty, he stated how liberty was primarily perceived as freedom from external constraints, that is to say, the liberty of an individual to act without interference from tyrannical rule.

Speaking more about limitations to this historical understanding of liberty, he said: “People who face marginalisation because of their caste, race, religion, gender, or sexual orientation will always face oppression in a traditional, liberal paradigm. This empowers the socially dominant in two ways. First, it removes State fetters from them to act as they please. Second, it emboldens dominant social groups to exercise their existing dominance to oppress marginalised populations.”

CJI also highlighted how identity and its recognition by the State play a crucial part in what resources people get and their ability to express their grievances and demand their rights. The State, therefore, confers personhood and juristic personality as a first step in recognising the claim of entities and individuals., he said.

Artificial Intelligence and Personhood

Talking about several aspects of Artificial Intelligence, he stated that there is a complex interplay between AI and personhood. In this aspect, he talked about Sophia, a social humanoid robot developed by the Hong Kong-based company Hanson Robotics. Interestingly, Sophia was also granted citizenship in Saudi Arabia.

“While a humanoid robot (Sophia) was granted citizenship (in Saudi Arabia), we must reflect on whether all humans who live, breathe and walk were entitle to personhood and citizenship based on their identity. History is replete with examples of state prejudice based on identity.” stated the CJI.

Laws framed around the gender binary

While talking about this head, CJI emphatically stated that “Laws framed around the gender binary have historically led to the concentration of wealth in men. These laws commit a dual fallacy. First, they assume that there are only two genders that must be distinguished. Second, they actively disadvantage women and advantage men.”

He further highlighted celebrated judgments like Anuj Garg & Ors. vs. Hotel Association of India & Ors. Imperatively, in this case, constitutional validity of Section 30 of the Punjab Excise Act, 1914 (the Act) was challenged. This provision prohibited the employment of any woman in any part of an establishment in which liquor or any other intoxicating drugs were consumed. The same was struck down by the Apex Court noting that the impugned legislation suffers from incurable fixations of stereotype morality and conception of sexual roles.

Moving forward, he also proudly spoke about the decision rendered in The Secretary, Ministry of Defence v. Babita Puniya & Ors., which led to permitting women for permanent commissions in the Indian Armed Forces.

“These cases show that how identity has been used as an assertion against discrimination by the State.,” he said.

Affirmative Action

Taking his cue from the right to liberty for tribals or Adivasi communities, CJI spoke about affirmative action.

“In India, affirmative action has been prescribed and even mandated by the Constitution of India in the context of Scheduled castes, tribes, and backward classes. Caste, far from being a vestige of the past, continues to exert significant influence on contemporary, socio-economic and political landscapes…. Many reports in India have brought attention to the widespread abuses which are faced by marginalised communities including social segregation, untouchability, limited access to education and underrepresentation.”

Based on these observations, he underscored the need for affirmative action to address deeply rooted discrimination. Terming the affirmation action as a transformative force, he said that it also challenges established caste dynamics while also catalyzing change. Further, he also stressed how reservation or affirmative action stands as a beacon of hope to weed out caste-based inequalities.

Boxing People into Rigid Identities

Distinguishing the traditional understanding of liberty and new-age understanding, he said that the latter is not bereft of its demerits.

“In our well-founded assertions of identity, we must not forget that the removal of underlying systematic discrimination would require us to abandon the notion that people must be categorised into boxes”.

Explaining it further, he said that boxing people into rigid identities is one way in which society may deprive individuals of exercising their freedoms. He illustrated the same by talking about the division of people with disability in order to afford state benefits.

“Instead of making accessible infrastructure and disability friendly education…. people with disability are forced to get a certificate for entitlements under the Right of person with Disability Act, 2016. This has led to problem of creating a benchmark for disability to avail state benefits. This has led to many disabled people falling through the cracks because they cannot be boxed into benchmark scales. Further, it has distracted from the larger solution of fixing our overall physical infrastructure. Lastly, people with disabilities are still relegated to an inferior status in need of state rescue. Because it has taken for granted that they are in exception to normal and will require special accommodation.”

Wrapping up his address, CJI said: “While the journey of liberty has aimed to maximise human freedoms, it is our life’s work to imagine liberty as the removal of systematic barriers and to make oppression-based identities obsolete. This is not to say that the persons with certain identities will invisibles; however, the stigma attached to them would become part of benign distinction. One of several that humanity cherishes even today.”

Video of Today's Session can be seen here.