'Fraternity Is Not Assimilation Of Minority Into Majority, Its Peaceful Co-existence Of Differences' : Justice S Ravindra Bhat

Organized by the students of the Harvard Kennedy School and Harvard School of Business, the 20th edition of the annual Harvard India Conference was held on February 11 and 12, 2023. This year, as India completes 75 years of independence, the conference's theme, "Vision 2047: India at 100 Years of Independence," led to deliberations on the hopes and challenges for the next 25 years.

India's potential on the global stage was the subject of in-depth discussions at the conference's many panels, which brought together experts and leaders from business, law, policy, activism, culture, and academia.

The conference concluded with a keynote address delivered by Justice S. Ravindra Bhat, Supreme Court of India. Justice Bhat emphasized the relevance of the constitution for every Indian and the importance of inculcating a culture of constitutionalism in public life. This, he argued, was integral to the sustenance of a functional democracy.

Thriving Democracy: The Heart of Constitutionalism

Reflecting on the historical context in which the constitution was born, Justice Bhat highlighted that the constitution reflected the radical aspirations for a new India and a commitment to upholding justice, liberty, and equality for all its citizens. Through an emphasis on the values of justice and equality (political, social, and economic), in particular, the constitution encapsulates an intentional effort to address and remedy deeply entrenched inequality and historic injustice.

Justice Bhat pointed to the constitutional recognition of universal adult franchise as a far-reaching decision by the framers of our constitution. He said, “Given the social and economic inequalities that existed in Indian society, the aspiration for all adult Indians to be equal voters was a radical choice.” He further noted, “It is the wisdom of our constitution makers that has ensured that democracy is the governing ideology, which acts as a channel for all ideas, experiments, and debates.”

Justice Bhat also argued that the manner in which people exercise their democratic rights has a cascading effect on all other constitutionally guaranteed rights. Therefore, meaningful people's participation is critical for an accountable and dynamic government.

“It is…the responsibility of the voters, the electorate to be alive to their duties, their constitutional rights to make inquiries that allow them to exercise rights to the best of their ability and always question what impedes it. This is the beauty of a functional democracy.”

Emphasizing the importance of free expression, dissent, and debate, Justice Bhat acknowledged that democratic discourse can be chaotic and noisy. For a vibrant democracy, chaos is both a reflection of the diversity of opinions and aspirations, as well as a safety valve to check government policies. As long as they are peaceful, he pointed out, protests and mass movements are important for democratic decision-making because they reflect people's collective voices and disagreements.

Justice Bhat also commented on the changing role of the media in shaping the quality of public discourse and its impact on people's right to information. He highlighted that, “the absence of strong regulations for media control and ownership has allowed private interests to influence and dictate news reporting, which is a concerning issue”. He also discussed the twin impact of new media technologies. While social media has led to an ease of information dissemination, the accompanying rise in misinformation and fake-news is an indirect challenge to freedom of speech and expression.

Deliberate Pursuit of Constitutional Values

Significantly, Justice Bhat spoke about the importance of the frequently overlooked constitutional value of fraternity, especially in a plural society like India. He explained, “Fraternity is the buckle that fastens liberty and equality."

“In our pluralist society, the polyvocality of its members is an asset that strengthens our democracy. We may find ourselves in different positions on the spectrum of political ideology, but it is fraternity that entrenches our belief in certain fundamentals, such as respect for the rule of law, which are indispensable for unity. This word shows the value of tolerance, which unfortunately has been dwindling the world over. Fraternity is not the assimilation of the minority into the majority. To the contrary, it is the celebration of peaceful coexistence of differences that constitutes our national identity.”

Finally, Justice Bhat emphasized that the mere existence of the Constitution does not guarantee constitutional culture. It involves deliberate and consistent efforts towards the meaningful realization of constitutional rights and duties.

“It is the political maturity and traditions of people that give meaning to our constitution, which otherwise would merely embody the political hopes and ideals. This is what the democratic ethos of our constitution expects of us.”

The Future of the Criminal Justice System

The significance of this “democratic ethos” and meaningful public engagement also emerged in the context of a panel discussion on the future of the Indian criminal justice system, which Justice Bhat was a part of earlier in the day.

Besides Justice Bhat, the panel included Nitya Ramakrishnan (Senior Advocate) and Professor Vijay Raghavan (Project Director, Prayas, TISS). It was moderated by Professor Anup Surendranath (Executive Director, Project 39A, NLU-D). The panel emphasized the wide-ranging implications of a broken criminal justice system for the future of democracy. The panelists urged that discourse around criminal justice reforms not be limited only to lawmakers, judges, or lawyers, but must involve a wider public engagement as well.

Despite the imperative for police reforms, the panelists discussed the lack of political desire to introduce and implement effective reforms. While emphasizing the significant role of the police in public life, Justice Bhat cautioned that, "it is important to inculcate within the police the idea that they are not a part of the ruling elite but as much a part of the people”. He also stressed the importance of police training and the modernization of investigation techniques. This, he observed, needed to be accompanied by improved infrastructure and a change in mindset. He noted how inadequate forensic science labs were causing significant delays in investigations and trials.

Ms. Ramakrishnan challenged the flawed perception that due process hindered “justice” and allowed offenders to slip through. Rising crime rates and low convictions were instead a reflection of deficiencies in investigation and the incompetence of law enforcement. She highlighted how torture continues to be normalized as indispensable to investigation, even amongst the judiciary. She also pointed to the need for strengthening "the administrative and criminal consequences of custodial torture" by "making sure that the Magistracy is allied with it and equipped to deal with it".

Over-criminalization not a solution

The panel deliberated on the impact of overcriminalization, harsher penalties, and the weakening of fair trial safeguards, particularly under special laws such as the Protection of Children from Sexual Offenses Act (POCSO), the Prevention of Money-Laundering Act, and the Unlawful Activities (Prevention) Act (UAPA), where the process itself becomes the punishment.

The panelists stressed upon the critical responsibility of the criminal justice system to carefully balance the rights of the victim, society, and the offender, all the while ensuring the primacy of constitutional principles and due process safeguards, regardless of the offense or the identity of the accused. Besides the judiciary and law enforcement, it is essential that society at large recognizes the imperative to uphold these ideals. In Ms. Ramakrishnan’s words: “Criminal Justice cannot be in thrall either to vox populi or to the devices, whims, and caprices of the executive authority”.

Professor Raghavan reflected on how, instead of examining the underlying causes of crimes and increasing crime rates, there has been a false reliance on harsher laws and punishments as the solution. He discussed the manner in which the criminal justice machinery disproportionately affects economically and socially marginalized groups - including the impact of laws that criminalize poverty, and prolonged under-trial detention due their inability to furnish bail. He highlighted the overlooked problem of mental health and the breakdown of family support systems for prisoners, especially women, and stressed the need for imagination in a system for rehabilitation of offenders as well as victims.

The panel discussion underscored that the criminal justice system must not limit its focus to punishing offenders but equally invest in safeguarding the rights of victims, promoting social cohesion, and addressing the root causes of criminality. While utilization of science and technology in criminal investigations was the way forward, the discussion emphasized the importance of this shift being accompanied by an advancement in the capacity of judges and lawyers to critically engage with and challenge scientific evidence to ensure its robustness.