Chief Justice of India DY Chandrachud recently spoke on the theme of 'Role of Law In The Lives Of Those It Affects' at Oxford University. In his address, he spotlighted the issue of law which dehumanises the essence of democratic living and how an 'effects-oriented' approach by the judiciary helps 'Re-humanize' the law.
In the heart of his address, the CJI emphasized the need to approach the law by understanding the far-reaching effects it may have on the lives of the citizenry and the constitutional values of a nation.
“In other words, rest the content without inquiring what is the purpose of the law but focus instead on the effect of the law. By shifting to an effects-oriented approach courts analyse if the law is violative of constitutional values and has a dehumanising effect.” the CJI Opined.
Speaking from his experience as the Chief Justice of India and a Supreme Court Judge, CJI DY Chandrachud expressed the need to apply law from a humanistic approach especially considering how in the historical past of India, Law during the British Era was used as a tool of oppression.
I administer the law as a contemporary judge of the Supreme Court in an independent India. But I am deeply conscious of the fact that the same law which can be an instrument of justice was a form of colonial oppression in the years before independence. So the way the law is administered depends on and defines the cause of justice. This may be primarily because the state may adopt a purpose-oriented approach while enacting laws which may have a consequential impact on the law having constitutional values such as Justice, Liberty, Equality, Dignity and Individual Autonomy.
The CJI expounded on the multiple ways in which law can manifest itself from a 'dehumanising approach' which is contrary to democratic values. These included (a) the 'paternalistic' treatment of seeing citizens as mere subjects and not individuals; (b) refusing to grant or partially grant complete personhood; (c) using humiliating statutory language
Lack Of Institutional Recognition Impacts Public & Private Life Of An Individual
Stressing the importance of seeing the vast ramifications of institutional recognition of a man's rights, the CJI cited German-American Historian and Philosopher Hannah Arendt.
As per Arendt, institutional recognition of personhood and the rights that come along work like a mask for every human to help them shield their wounds from inequality within society. Such a recognition puts each man on an equal pedestal but lack of the same strips the same man off that pedestal.
“A Human outside of Institutions cannot be fully human. She argues that institutional recognition similar to a stage mask enables one to appear equal to others. However, once stripped of this mask of institutional recognition there is a rightless human being with a diminished role in the public sphere.”
Expanding on this further, the CJI opined that the effects of stripping one of institutional recognition are not just limited to his/her role in the public sphere but also the private life of the citizen. He exemplified this by stating how for the longest time when women in the USA were not given the right to vote had a domino effect which touched their personal lives and private choices.
“I would go a step further and argue that the lack of institutional recognition not only impacts the role of the individual in the public sphere but also their roles in the private sphere as well. This is because the lack of public recognition diminishes personhood which is reflected in the way a person would conduct themselves. This approach to dehumanisation is usually adopted by States in legislation that entrenches the social discrimination faced by groups. The denial of the right to vote of women in history is an example- the dehumanization of women due to partial institutional recognition subjugated women not merely in the private but also in the public sphere.”
Re-humanize The Law - CJI's Proposes To Focus On 'Effects-Oriented' Approach
As per the CJI, the simple yet effective solution to a legal regime that dehumanizes is 'Re-humanisation' by dismissing humiliating expression in law, encouraging the grant of institutional recognition and maintaining the balance between human rights and 'weighty' agendas of the State.
“The law can rehumanize by expugning the use of humiliating statutory language, by granting institutional recognition to persons and by balancing the rights of individuals with the weighty purposes of the state.”
However, he further highlighted the practical difficulties in implementing such a solution. He stressed that there may be resistance on the part of the State to equitably balance its interests with that of the interests of the citizens. The legislature may also justify colloquial expressions used in law by relying on their widespread acceptance over the years.
“The law may be improved through incremental steps, the State may be unwilling to balance the rights against weighty purposes and the legislature may assume that colloquial terms when used in a statute are more widely understood by the people.”
CJI then proceeded to unfold the 5 main components of achieving the humanization of the law. These components are greatly dependent upon a judge's approach while adjudication on the matters.
“I believe the law can be humanised when a judge adopts a nuanced and humanising approach towards adjudication. There are 5 core components to the humanizing model of adjudication in our contemporary court.”
The first - humanising through the function of judicial review. In this component, the court while analysing and interpreting the constitutional validity of laws, shifts away from a purpose-oriented approach to an effects-oriented approach. Thus the CJI heavily relied on the significance of seeing a law's far-reaching impact on society and not just the legislative intent behind it.
“In other words, rest the content without inquiring what is the purpose of the law but focus instead on the effect of the law.By shifting to an effects-oriented approach courts analyse if the law is violative of constitutional values and has a dehumanising effect.
The CJI exemplified this by citing his recent judgement of MK Ranjitsingh And Ors. v. Union of India. In the said case the Top Court recognized a right to be free from the adverse effects of climate change as a distinct right. The Court said that Articles 14 (equality before law and the equal protection of laws) and 21 (right to life and personal liberty) of the Indian Constitution are important sources of this right.
The second component, the CJI expressed was procedural justice which included the right to be heard fairly and to be treated with dignity and neutrality. He illustrated with the Top Court's decision in Madhyamam Broadcasting Ltd vs Union of India, famously known as the 'Media One Case'. Here the bench of CJI DY Chandrachud and Justice Hima Kohli ruled against the telecast ban imposed by the Union Government on Malayalam news channel MediaOne. The judgment authored by CJI DY Chandrachud emphatically stated that the State cannot deny the rights of the citizens by merely raising the plea for national security.
The third component was the importance of re-living the unique lived experiences of the parties. Taking the example of the crime of rape against a minor disabled girl, the CJI underpinned the need to empathise with the concept of 'intersectional discrimination' where discrimination prevails across intersectional aspects in society instead of compartmentalised unfairness.
“The law in general and rigid. The core of the art of adjudication lies in the ability to understand and sympathize with the lived experiences of the parties. In the example which I just gave you, the Court has to have a robust understanding of what we in law call 'intersectional discrimination'. This is the human factor underlying adjudication. The Court's consideration of the mitigating and aggravating conditions, in its sentencing policy, is the apt instance of the human element in the adjudication.”
Humanizing the language used in judgements was emphasised as the fourth component. CJI stressed the need for judges to be cautious while framing their judgements and shun the use of expressions having prejudicial and stereotypical connotations.
“The Court must also not use prejudicial and stereotypical language in judgments while referring to members of certain groups particularly those belonging to the marginalised communities or use gender insensitive language. This use of prejudicial language promotes a grim perception of the marginalised communities. For example, the judgements must not refer to a member of a backward class as a lower caste. The appropriate term is marginalised caste.”
He explained how in the judgements dealing with the writ of 'habeas corpus'- which means producing the body, the court must describe the person concerned beyond the legal jargon and “humanize the detenue”.
“The language of the judgement must reveal that behind the body the Court is dealing with a person of a specific background and not just a body or a corpus as the traditional legal notions would call it.”
Lastly, the final component that the CJI highlighted was the humanization of the Justice Delivery Mechanism itself. He highlighted how the lack of efficiency in the procedural and filing aspects of the legal system holds back the individuals for seeking speedy justice.
“The Justice Delivery Mechanism like the law also has the potential to dehumanise- the long queues for the filing of cases, the hassle of checking the status of filings leaves parties dehumanised by the end of it.”
The CJI then stated how the Supreme Court has strived to solve this issue by introducing e-filing mechanisms for the convenience of the parties, counsels and courts. However, he ended the address with a small caveat - that while Artificial Intelligence may be used to the best of its abilities, one has to be mindful of the effects of its overuse and misuse and ensure that certain 'guardrails' are in place.
“I'm not a proponent of the complete automation of procedures, since I believe that the absence of the human mind will remove the human element from the process. It is important that we understand and value the pros and cons of technological usage to ensure a humanised mechanism of Justice. AI is replete with unique possibilities for the future, we must ensure that we impose guardrails as a way distinguished academists have called them - guardrails which would control AI itself and not shift the process of adjudication from a judge to a robot.”