'Constitution Being Ruined By Those Supposed To Defend It, Judges Looking For Divine Guidance To Decide' : Sr Adv Indira Jaising

Speaking at an event, Senior Advocate Indira Jaising yesterday opined that the Constitution and its core values like 'secularism' are facing multiple threats, and underlined the importance of the judiciary discharging its duty to uphold the Constitution without fail.

The senior lawyer was delivering the "29th Justice Sunanda Bhandare Memorial Lecture" on the topic "India's Modern Constitutionalism". Besides her, the event was graced by former Supreme Court judge Justice Madan B Lokur, Delhi High Court Chief Justice DK Upadhyay (Chief Guest) and Justice Vibhu Bakhru.

In her lecture, Jaising expressed that in its dealing with citizens, constitutionalism endows them with fundamental rights which the state cannot violate. However, now there is a rising demand for repudiating the Constitution, which questions the very need for a codified norm.

"Constitution is a binding norm. Today we are told let's treat the constitution as mere guidelines. We need to remind ourselves that Constitution is binding also on those who hold positions of constitutional power" she said.

Jaising highlighted that the judiciary is supposed to be the guardian of citizens' rights, however, this is the time for reckoning whether it has in fact played that role successfully. "The modern Constitution is under siege. What we are witnessing is a kind of repudiation of the Constitution by those who are responsible for upholding it".

She also addressed last year's statement by Vice-President of India Jagdeep Dhankar that children must be distributed the "original Constitution" (which according to him was signed by the founding fathers and contained illustrations of Hindu Lord Ram). Terming the VP's remark as "misinformation", Jaising explained that the illustrations were not part of the "original Constitution" of which there are 3 copies - two in the Parliament and one in the Supreme Court. Rather, they were done in 1954, she said.

"What is the "original" Constitution is the question...His comment was that we must circulate this so that children know that the "original" Constitution of India had illustrations of Ram in it...this is not only misinformation, but it would be interesting to see what is the "original" Constitution."

During her lecture, Jaising also linked feminism and constitutionalism, saying that the two are connected to each other like twins. She referred to various judgments of the Supreme Court to showcase how women were the driving force behind the Constitution and a lot of "transformative" decisions came in the context of women, transgenders, etc. One of these was the Shayara Bano judgment, whereby triple talaq was held unconstitutional.

"Judiciary has been reluctant to render void personal laws which continued in force after Constitution came into force. The only judge who came close was J. Rohinton Nariman in Shayara Bano judgment (triple talaq), where he said the laws were unconstitutional" Jaising said.

She further spoke on deep-rooted patriarchal values prevailing across the judiciary by referring to a Gujarat High Court order, where the concerned bench was dealing with the abortion request of a minor girl. In this order, the bench apparently suggested reading of the Manusmriti and noted that earlier, girls used to get married by the age of 14-15 and gave birth before the age of 17. In this regard, Jaising informed the audience that Dr BR Ambedkar rejected the Manusmriti as far back as 1927 and the day of his burning the text is commemorated till date as Stree Mukti Diwas.

In the context of Articles 25 and 26 of the Constitution, the senior lawyer emphasized that faith and belief cannot be the basis of law-making. Right to freedom of conscience and religion is protected for all persons under the Constitution, she said, while lamenting that people mostly focus on the "religion" aspect and ignore "conscience". Further, she asserted that these rights have been conferred on individuals and have no place in public life.

On the new criminal laws (BNS, BNSS and BSA), she reflected that there have been justifications to the effect that the new laws aim to de-colonize the justice system and bring in an element of "Swadesh", however, they in fact ask us to "surrender to a police state" and "reinforce the existence of a police state", while retaining colonial legacies (like the laws on sedition and marital rape).

"These laws are also differentially applied to marginalized communities as compared to holders of power. You can see the impunity against prosecution available to powerholders. I am just wondering after listening to the CJI whether constitutionalism survives in India", she added.

Jaising further commented on the importance of protecting secularism in India. She contended that protecting secularism is not about "appeasing the Muslim community"; rather, it is quintessential for the unity and integrity of India. Without specifically taking name, she criticized the former Chief Justice of India for referring to "dhwaja" (flag) as the symbol of justice. In her opinion, she said, only the Constitution has been the symbol of justice.

The senior counsel further warned that without secularism, India is in danger of seeing civil wars of hatred from within the country and creation of perfect context for external attacks. "Reinterpretation of laws to align with majoritarian ideologies threaten secularism in a multi-religious country. The unity and integrity of state itself is threatened...By both legislative and judicial practices", she said.

With regard to the judiciary's role in the threat to secularism, Jaising referred to the controversial speech of sitting Allahabad High Court judge Justice Shekhar Yadav, at an event organized by the Vishwa Hindu Parishad. She called the remarks made in the said speech as 'Hate Speech'.

She also criticized the members of the Executive for calling Hindu Lord Ram the "idea of India". "I beg to disagree. The Constitution is my idea of India. You can never have a Hindu Rashtra under a secular Constitution", Jaising asserted.

Before closing, Jaising also expressed that change is being brought in silently by bypassing procedural safeguards (criminal laws being passed as money bills and Collegium recommendations being ignored) and therefore it is difficult to challenge in Courts. Resultantly, the Constitution is being defeated by those who are supposed to protect it.

She further took a jibe at former CJI DY Chandrachud for seeking divine guidance in the matter of judicial decisions. "We see the Constitution being ruined by those who ought to defend it. We see judges looking for divine guidance to make their decisions. This is very anti-Constitutional. I stand here to affirm the Constitution of India", she said while parting.

The video of the event can be watched here.