'Relationship That Truth Shares With Democracy Akin To Both A Sword And A Shield': Justice D.Y Chandrachud

"One cannot only rely on the State to determine the truth", Justice Chandrachud remarked on Saturday.

The Supreme Court judge was addressing a virtual audience on "Speaking Truth to Power: Citizens and the Law" as part of the 6th M. C. Chagla Memorial Lecture.

He expressed the view that while the State does not often adjudicate upon scientific truth, it does provide its classic approval when it decides to frame policies based on it. As such, all policies of the State can be assumed to have been formed on the basis of what the truth of our society is.

"However, this is, by no means, something which leads to the conclusion that the state cannot indulge in falsehood for political reasons even in a democracy. The role of the United States in the Vietnam war did not see daylight until the Pentagon papers were published. In the context of the COVID-19 pandemic, we see that there is an increasing trend of countries across the world who are trying to manipulate data on the COVID-19 infection rate and death", remarked Justice Chandrachud.

"It is not difficult for one to understand why democracy and truth go hand-in-hand; democracy needs the power of truth to survive. As such, one can consider speaking truth to power as a right of every citizen, which they must have in a democracy, as also the duty of every citizen. As citizens of a democracy like India, we need to commit ourselves to the search for truth as a key aspiration of our society. It is crucial that we etch 'Satyamev Jayate' in all our hearts and work towards building the right temperament, by questioning the State and experts and even our fellow citizens, in order to determine the truth and then speaking the truth to them if they choose to ignore it or to deny it", he opined.

"What I am saying right now may seem too idealistic or impossible a vision, given the scale of democracy in India. I will not deny that the challenge before us is tough, but it requires constant efforts from all of us", he urged.

'Truth cannot be akin to opinion leading to prejudice; opinion of a person is conferred status of fact and subsequently, of truth, based on the power they wield in society'- Justice Chandrachud

To understand how we can truly exercise this right of ours of speaking truth to power, he said, it is important to first ask ourselves what truth even means. "And I know, based on the responses I get in court, that people sometimes believe that what judges ask in court is imponderable. But that I am wearing spectacles is the truth and stating anything to the contrary would be an abject lie. The difficulty is not in knowing the truth but in only identifying it", said Justice Chandrachud.

He continued to state that the very nature of truth can often be indeterminable in society and most commonly, truth is defined in terms of facts, in accordance with the correspondence theory of Plato and Socrates- that a proposition is true if it corresponds to a fact.

"It is important to remember that the most preliminary facts can be disputed. Until this day we continue to have a section of society that still disputes the phenomenon of global warming. However, a determination of what constitutes the true fact is important since laws are enacted on the indispensable belief that the mischief which the State sought to rectify through them is true and established in fact. Hence, if the phenomenon of global warming turned out to be a lie, then the basis of many of the environmental laws would be farcical"

Continuing, the judge explained that while the phenomenon of global warming is a question for which we have a scientific determinable truth, a State does not seek to rectify merely those mischiefs which are grounded in scientific truths but also those grounded in moral truths-

"Take, for instance, the Bonded Labour System Abolition Act, 1976, which was enacted on the basis of two premises- first, that the bonded labour system exploits people, and second, that such exploitation of people is principally wrong. A liberal rights philosopher who believes in the value and quality of life might argue that both these premises are true but an economist may not agree with him."

With this, Justice Chandrachud mentioned the pragmatic theory of truth which defines truth in terms of opinions and that a quick glance through history teaches us that individuals tend to have opinions that may not be morally justifiable to others. "Rousseau was of the considered view that women should be governed by restrictions and seen as objects of desire. Montesquieu regarded black Africans to be savage and barbaric who did not possess normal human traits. Women and black Africans were not treated as citizens because they were seen as such according to those who held power. The very fact that these opinions are acknowledged today for their sexist and racist overtones meets the argument that the truth cannot be akin to opinion which would lead to personal prejudice."

Justice Chandrachud indicated that long before the decision of the Supreme Court in Navtej Singh Johar by which it decriminalised homosexuality and long before a miniscule population of our country normalised homosexuality, Denmark had passed the Registered Partnership Act of 1989 which legalised same-sex marriage subject to very few exceptions. He showed that while India is currently transitioning towards normalising same-sex relationships, more than 10 countries around the world still prescribe capital punishment for homosexuality; and 40 years after India legalised abortion in 1971, most of the Latin American countries are yet to legalise it. "While for one part of the world, the truth may be that a foetus has the right to life, yet for another, this would be a false assertion", he remarked.

'With progress in society and annihilation of notions of patriarchy and caste supremacy, opinion of women, dalits is starting to be regarded as truth in India. The sooner we do it, the better.'

Continuing, the judge commented that the opinion of a person is conferred the status of a fact and subsequently, truth, depending upon the power they wield in society- In India, women, Dalits and others belonging to marginalised communities did not traditionally enjoy power and hence, their opinions were not conferred the status of truth. This is because they did not enjoy the freedom to express their opinions and their thoughts were confined, crippled and caged. Even after they received the right to vote, their opinions were reckoned to be untrustworthy. Further, in India during the British Raj, when power was absolutely in the hands of a few powerful members of the Raj, the truth, and by necessarily inference, the fact was the opinion of the king or queen or the members of the Raj. After the abolition of the Raj, truth became the belief and opinion of upper-caste men. "With progress in societies and annihilation of notions of patriarchy and caste supremacy, the opinion of women, dalits etc is starting to be regarded as truth in India. But the sooner we do it, the better as a society", expressed the judge.

Justice Chandrachud opined that one way to address this problem is we can look at the example of the Truth and Reconciliation Commission in South Africa which defines four types of truth- one, factual or forensic which we could define as a scientific truth which is determined on the basis of facts; The second was personal or narrative truth. It was based on the cathartic benefit of storytelling where everybody who was affected by the Apartheid could come forward and tell their story in public hearings; the third being social or dialogue truth, which is the truth of experience that is established through interaction, discussion and debate; and the fourth was healing and restorative truth, involving acknowledgement of the crimes committed against the survivor by putting the facts collected by the Commission in a proper political, social and ideological context.

'By cherry-picking of facts, citizens are not clearly told a lie but a selective version of truth which helps manufacture consent of unsuspecting citizens'- Justice Chandrachud

Other than the State, the second means of determining the truth, as discussed by Justice Chandrachud, is through experts such as scientists, statisticians, researchers and economists who can verify knowledge- "Citizens are always expected to bow down to the assumption that such truth does not suffer the malaise of political bias.This is not always true. While experts may not have political affiliations, their claims are also subject to manipulation due to reasons such as ideological affinity, receipt of financial aid or personal malice. These experts are also employed by think tanks to conduct research to support specific opinions"

Besides, the judge pointed out that women, dalits and other marginalised communities are often never designated as experts, being prevented from accessing these positions, which takes away their opportunity to contribute to the determination of the truth. Since their perspective is never taken into account, the claims of experts also suffer from the problems of their own inherent bias.

Experts also claim that they base their opinion on concrete facts which makes the conclusion the obvious truth. "However, post-modernist scholars correctly noted that while the facts in themselves may be accurate, their selection and arrangement and the conclusions drawn from them are subject to the individual realities of the person making the same. The opinion of the expert cannot be really considered as objective truth even when based on true facts because it is only one possible opinion based on those facts", said the judge.

Justice Chandrachud articulated that by this cherry-picking of facts, the citizens are not clearly told a lie but are told only selective facts, which is a selective version of the truth that then helps manufacture the consent of unsuspecting citizens.

'As responsible citizens, we must put truth-providers through intense scrutiny, questioning to convince ourselves of veracity of their claims'- Justice Chandrachud

The judge indicated that the third means of seeking the truth is deliberation and discussion by the citizens, by paralleling, combining and expanding the claims of truth in the public sphere.

"It is often argued that scientific truth that is dependent upon the knowledge of the expert and truth which is out of the reach of the common man due to non-transparency by the State cannot be verified by the common man due to the evident lack of expertise in that field and the lack of information. As responsible citizens, we must put the truth-providers through intense scrutiny and questioning to convince ourselves of the veracity of the claims made by them. For this, it is equally important for those making truth claims to be transparent and conspicuous. We must together encourage a culture that is conducive for the deliberation of the truth, particularly because the truth dances on a fine balance between fact and opinion", urged Justice Chandrachud.

Justice Chandrachud continued to state that the relationship the truth shares with democracy is both that of the sword and shield-

"The scope for excessive deliberation, especially in the age of social media, exposes multiple truths so that it seems we live in an age of lies and that shakes the very foundations of democracy. The citizens should arrive at a consensus, on at least the basic facts that are backed by both science and society, to form collective decisions and collective consciousness. The deliberations are set forth by the State, but if we unconsciously or deliberately imbibe them, we will discern just one truth, the one that is not challenged by us. In contrast, deliberations by multiple groups with differing viewpoints will bring about correction of errors in this truth and ideas will be aggregated and the entire process will help in the emergence of a solution that no one person could have thought of individually"

In this context, he stressed on the legislative consultative process, which he said is an act of deliberation by individuals to bring about impactful change.

"For example, the draft bill of Kerala Police Act of 2011 was published on the website of the state police, inviting feedback and suggestions. When the bill was introduced in the House, it was referred to a select committee which conducted a meeting. Almost 400 to 500 people attended this meeting and the necessary impact of such a consultative process was a suggestion of 790 amendments to the draft bill after nearly 4 hours of extensive debate. Almost 240 of those amendments, most of which were centred on public feedback, were finally accepted. In contrast, in South Africa, pre-legislative consultation is a constitutional requirement and any law which is enacted without it is deemed unconstitutional. In 2005, the Parliament of South Africa enacted legislation relating to reproductive health care. The Constitutional Court of South Africa however declared these laws as unconstitutional as the National Council of Provinces did not fulfil its obligation of initiating public deliberation on the law"

'Role of citizens in determining truth does not confine only to the elitist or privileged class of individuals, but applies across the board'

As regards who should be the citizens to take up this role, the judge pressed that it is important to remember that every person- rich or poor, male or female or belonging to a third gender, Dalit or Brahman or otherwise, Hindu, Muslim Christian, Zoroastrian or belonging to any other religion- has the inherent capacity to identify the truth and differentiate it from falsehood. This ability stems from common knowledge, experiences in life and individual struggles and much more.

"Many of them are unable to participate in this process because of systematic oppression which either does not provide a platform for their voices, or worse, attempts to minimise their actual impact. While considering the role of citizens in determining the truth, we must keep in mind that this does not refer only to the elitist or privileged class of individuals, but applies across the board. Therefore, it is imperative upon us to create an environment where this becomes possible", expressed the judge.

Justice Chandrachud opined that we must work towards ensuring that the barriers based on one's gender, caste, religion, language or economic status are removed so as to bring everybody's reality as close as possible in order to allow them to have similar notions of the truth of our society.

'Courts can play a role in documenting truth for creating public memory upon which the foundations of the nation can be built in the future'

In defining what speaking truth to power even means, Justice Chandrachud indicated the ancient Greek tradition of 'Parrhesia' which denoted the act of the speaker to criticise someone more powerful than them. In India, he said, it would be akin to Mahatma Gandhi's philosophy of 'Satyagraha' where truth is used as a form of non-violent resistance to those in power. "The aim is to wield the power of truth against the powerful, be it the imperial power or an all-powerful State. The act of speaking the truth will counteract power and obviate a predisposition towards tyranny!", he said.

Justice Chandrachud discussed why truth is so important to democracy, which he said is the form of government adopted to "prevent tyranny of the law and the tyranny of the few"-

"Let us compare the status of truth in non-democracies. During the course of the enlightened era in Europe, philosophers sought to challenge the domination of the Catholic Church and banalities in public life which were a result of their control over the truth. Hence, the Renaissance was not merely a literary or artistic revolution but was also supposed to usher in an age where superstitions and dogma would give way to reasons based upon actual truth. Even in early republics which served as precursors of democracies, truth was considered crucial to ensure the ethos of transparency and openness in the way of functioning"

The judge expressed that truth is important in modern democracies since any decision must be backed by adequate reason and the reason which is based on falsehood would be no reason at all. Truth is also important to instil a sense of public trust in democracies that the officials in charge are committed to finding the truth and acting in accordance with it. Hence, it is no surprise, he said, that the national motto of India after her independence has been 'Satyamev Jayate' or 'truth shall prevail'.

Justice Chandrachud said that truth also plays an important role in creating a public memory upon which the foundations of the nation can be built in the future-

"It is because of this reason that many countries have established truth commissions immediately upon establishing independence from a totalitarian regime or in coming out of human rights violations. They function to document, record and acknowledge the truth and violations of earlier regimes for future generations so as to not only take care of the survivor but also to prevent any possible denial in the future."

This role, he said, can also be played by courts which have the ability to document information from all the parties involved after due process has been followed- "In the suo motu cognisance of the COVID pandemic case taken by our Supreme Court, we have acknowledged this very role in the context of the pandemic."

Read full text of speech here

Also Read From The 6th Chief Justice MC Chagla Memorial Lecture: 

One Can't Rely Only On The State To Determine Truth; Speaking Truth To Power Both A Citizen's Right & Duty: Justice Chandrachud

MC Chagla Courageously Spoke Truth To Power: Justice Riyaz Chagla Remembers His Grandfather