Majoritarian Tendencies, Whenever and However They Arise, Must Be Tested Against Constitutional Promises : Justice Chandrachud

On the 101st Birth Anniversary of (Late) Mr Yashwantrao Vinshu Chandrachud, the longest-serving Chief Justice of India, Supreme Court, Justice Dr DY Chandrachud, addressed an online seminar organized by Shikshana Prasarak Mandali. Along with Justice D.Y. Chandrachud, Justice U.U.Lalit also marked his presence at the seminar presenting the landmark judgements pronounced by the Late Justice Y.V. Chandrachud.

Justice Dr D.Y. Chandrachud's address was on the topic 'Students As Constitution's Vanguards'. He began by quoting Socrates where he described education as 'the kindling of a flame, not the filling of a vessel'. In honour of his father's 101st birth century, he chose to speak about reading the Indian Constitution. At the very outset, he paid homage to Dr Babasaheb Ambedkar, the architect of the Indian Constitution. He referred to Dr Ambedkar as 'most prominent anti-caste advocate in India'. He revisited Dr Ambedkar's early struggles of gaining access to education, having belonged to an untouchable Dalit caste. He revisited his journey to gaining 26 degrees and titles and becoming one of the most highly educated individuals in his generation. He further added,

"He significantly struggled to gain access to even primary education. His foremost memories of his schooling are of humiliation & segregation; when he had to attend his classes sitting outside the classroom and ensuring that he did not touch the notebooks and water that belonged to the upper-caste student."

He said that Babasaheb's education was not a vehicle for his self-advancement but left its imprints in transforming the potential of the Indian Constitution. He provided the oppressed class with the 'necessary vocabulary' and aspirations to push back against the denigrating structures of caste and patriarchy. While reminding the students that the privilege of education as we enjoy today are the fruits of our ancestors' oldest struggles and dreams, he also remembered the contribution of Savitri Bai Phule, Jyoti Bai Phule, Nelson Mandela and Malala Yousfzai for their radical quest for education.

He expressed his firm belief in student's potential at heralding progressive politics and cultures by using their formative years to question the existing systems and hierarchy. He noted,

"The Constitution gives you the right and duty to question. Your education gives you the ability not to accept the way things have been and continue in the society".

He goes back to remembering his father, who used to say, "My Oxford was Nutan Marathi Vidyalay," on being asked for his command of English literature.

Justice D.Y. Chandrachud remembered the history of student movements back to the formation of the Academic Association in 1828 in undivided Bengal's Hindu College. He also accredited propelling of liberal thinking in India to the Young India Group of Free Thinkers contribution to the Bengal Renaissance in the 19th Century. He reminded of the brave pursuit of justice by students against colonial rule,

"Student Movements were key actors and mass participants in the Indian Freedom Struggle. They went on to assume leadership positions in the 1920 Non Cooperation Movement, 1930 Civil Disobedience Movement and 1940 Quit India Movement."

He praised the unparalleled idealism and optimism of the younger generation, giving the Independence Movement's example and the coming of Universal Adult Franchise in India.

He brought attention to bringing civil and liberties, substantive equalities and the fundamental freedoms of speech and expression as Fundamental Rights within the Constitution of India. He revisited the goals of the Constitution enumerated in the Directive Principle of State Practices. He noted the guarantee of seeking remedy through Courts as,

"It is often assumed that the inability of a person to rush to Courts seeking enforcement of the goals enumerated in the Directive Principle of State Policy is a proof of their irrelevance. However, a study of the Constitution and its finely contested structures reveal that these goals are to serve as the pedagogical structure of future governance to enable their progressive realization."

He emphasized the need to study Constitutional History and engage with the framework as the country enters its 71st year of Constitutional Republic. He referred to the Constitution as a 'north star' offering a benchmark to judge the conformity of every state action or inaction in times of peace or crisis, irrespective of the electoral legitimacy of the government.

He looked back into the mammoth task of achieving statehood as a post-colonial economy with semi-feudal conditions had to modernize its economic relations. He referred to the task of forming a national identity as 'indescribably complex' given the lack of a common ethnicity uniting its people. He observed that in a melting pot of cultures, the premise of a democratic nation-state could be truly tested.

He remembered the promise of commitments and entitlements to every citizen reiterating the fundamental freedoms guaranteed in the Constitution of India. He noted,

"Majoritarian tendencies, whenever and however they arise, must be tested against the background of this Constitution promise. Any semblance of authoritarianism, clampdown on civil liberties, sexism, casteism, otherization on account of religion or region is upsetting a sacred promise that was made to our ancestors who accepted India as their constitutional republic."

"The danger to your freedoms may originate from those who are tasked to govern, but they may also originate in the intolerance in the society as well. The Constitution provides you, both with a shield and a guard", he said in his Speech.

He advised the student attendees that irrespective of the field they choose to pursue, they must study the Constitution's history, spirit, and morality. It is not just a lawyer "s constitution, he noted.

He shares that being a lawyer and now a judge requires a lot of intricate reading over a wide range of issues. Nevertheless, he embarks on his judgement of the Unique Identification Authority of India to determine the constitutionality of Aadhar or the complex process of vaccine development and production while understanding the feasibility of compulsory licensing and the subsequent technology transfer that could potentially augment the production of the COVID-19 vaccines.

He reiterated that lawyers do not occupy this unique nexus where they engage with all aspects of our society through the constitutional lens. He emphasized.

"Each and every one of us, irrespective of our age, profession or socio-economic location unwittingly engages with the Constitution every day. When we lead our lives without obtrusive and unjustified state interference, when everyone- irrespective of their caste identity exerts their right to access public places- be they shops, parks, wells or temples, or when we enjoy the right to speak our mind and profess our trade- we assert our constitutional freedoms. The lives that we lead as given and obvious today, were not our reality, less than 75 years ago. The Constitution marked a breakthrough; it embodied a vision and a pedagogical purpose when it formulated a framework that was aspirational and a work in progress."

He also discussed the constitutional amendment process, referring to it as 'relatively easy' in India, which has enabled the coming of fundamental enforceable rights for children under Article 21A. Meanwhile, he also referred to the limitations of the Kesavananda Bharti judgement by propounding the basic structure doctrine.

He commented on how technology has dramatically altered the social landscape, becoming the 'primary window into the world' amidst the COVID19 pandemic. He shared his experience of upholding the right to privacy as a fundamental right,

"I have to interact with the Constitution in novel ways, every single day. One such challenge was determining whether Indian citizens have the right to privacy. This right to privacy would embody our free ability to make our own decisions, access information and freedom from state or private surveillance. These issues arose as a consequence of our digitally mediated life, which is a novel medium that did not exist before the invention of the world wide web in 1989! The Constitution, drafted in 1950, would not be compatible with our lives today if we considered it as dead letter that would have to be applied as a rigid formula for evaluating realities that were previously unfathomable. My conclusion in the Supreme Court decision, recognizing a right to privacy as an essential component of the 'right to life' under Article 21 of the Indian Constitution, was a recognition of the Constitution as a foundation, which future generations had to build upon- as opposed to a rigid text that would be literally applied, divorced from its historical context".

The Constitution, he noted, seeks to define the contours of our democratic institutions by providing certain operative rules and constraints that were grounded in a commitment to equality, liberty and justice for all as an enduring vision. He entrusted the succeeding generations to interpret its spirit and apply it to their lived realities. Finally, he reiterated the importance of constitutional spirit to protect individuals from hegemonic power structures, irrespective of their forms.

He advised the students to keep the Constitution, and its teachings close, as they will matter, irrespective of the vocation one chooses. He presented ways in which students can take the lead remembering the journey of Greta Thunberg,

"An engaged citizenry, particularly its students, can confront several material interests that will have to make them subservient to the existence of our species. For example, Greta Thunberg, who is one of the strongest voices in civil society 11 against climate change, began her journey, as a lone 15 year old, sitting outside the Swedish Parliament demanding governmental action against the imminent risks of global warming. Her example, in addition that of many others, shows us how nobody is too young or too insignificant to effectuate a big change."

He concluded by quoting Martha Nussbaum, a prominent legal academician,

"It would be catastrophic to become a nation of technically competent people who have lost the ability to think critically, to examine themselves, and to respect the humanity and diversity of others".

Click Here To Download the text of the Speech

(Certain statements not found in the  text of the speech were also made by Justice Chandrachud in his speech. Video of event given below)

Read The Speech