'Trust Us To Be Guardians Of Civil Liberties, No Case Is Small For Court' :CJI DY Chandrachud

"Trust us to be guardians of the liberties of our citizens. There is no case which is small enough or big enough for any court in the nation… Because it is in us that the confidence of the citizens, the due process of law and protection of liberty rests. And it is through the lives of members of the bar, who fearlessly espouse those causes that the flame of liberty burns bright."

The comment could also be termed as a continuing response to the Union Law Minister Kiren Rijiju's recent comment in Parliament that the Supreme Court should not be hearing bail applications and should rather hear constitutional matters. Yesterday, while hearing a case in the Court, the CJI had expressed similar views by saying that "no case is too small for the Supreme Court" and that it is the Court's duty to interfere in matters relating to personal liberty.

CJI DY Chandrachud started his speech with a Sanskrit quote for Desai who spent his life protecting the rights of the citizens of India. "Learning sits lightly on the shoulders of humility (translation)," he said.

CJI Chandrachud cited the case a case wherein Advocate Desai effectively defended Vijay Tendulkar's play Sakharam, the Binder where the protagonist unapologetically exposed the brutality of Indian society. The protagonist rebels against the mores of society by providing food and shelter to women who are abandoned by their husbands. In return the women had to satisfy his sexual urges.

He narrated the story about how the legal team led by Advocate Desai anticipated police action against the play and drafted the petition overnight and approached the Bombay HC. They were able to effectively stay any adverse action by the police.

"In many ways it could be said that Ashok Desai's commitment to free speech and expression convinced artists, journalists, and writers that they could freely and confidently exercise their freedom of expression. Because he had their back."

CJI Chandrachud said that the origins of law can be traced to morality. In the beginnings of Roman Law, adherence to contracts and acting in good faith were left to individuals. While law regulates external relations, morality governs our inner lives and motivations, he said.

However, he underscored how morals might vary from person to person and gave the example of an honour killing case from Uttar Pradesh in 1991. A 20-year-old boy and his friend (lower caste), who help him elope with a 15-year-old girl, were murdered by the upper caste in the village. The parents were forced to hang the bodies of their children to a tree as a lesson and the perpetrators of this crime were proud of their actions.

"Their actions were acceptable and justified because they complied with the Code of conduct of the society in which they lived. Is this the code of Conduct that would have been put forth by rational people?," CJI Chandrachud asked. "Many people are killed each year for falling in love or marrying outside their caste or against their families wishes," the CJI added trying to address hard questions of the indissoluble link of law, morality, and group rights.

The CJI cited the decriminalisation of section 377 of the IPC between consenting adults to say that it was based on "public morality" which approved heteronormativity and castigated homosexuality. The SC used "constitutional morality" termed by Dr Babasaheb Ambedkar to effectively counter the impulses of public morality. "Constitutional morality determines the mental attitude towards individuals and issues by the takes and spirit of the Constitution. It requires that the rights of an individual ought not to be prejudiced, by popular notions of society. It assumes that citizens would respect the vision of the framers of the Constitution and would conduct themselves in a way which furthers their vision. 

The CJI ended his speech with a song from Leonard Cohen – Democracy is Coming

"It's coming through a hole in the air

From those nights in Tiananmen Square

It's coming from the feel

That this ain't exactly real

Or it's real, but it ain't exactly there

From the war against disorder

From the sirens night and day

From the fires of the homeless

From the ashes of the gay

Democracy is coming….,

The function was organised by the Bombay Bar Association along with the family of Ashok Desai. Also present were acting and former CJs of the Bombay HC, CJ SV Gangapurwala and Justice Dipankar Datta.