The triple talaq and right to privacy rulings, as well as the Punjab and Haryana high court’s comment after the Panchkula violence, have shown the importance of judiciary in a functioning democracy – to assist, reflect and question.
The last few weeks have seen the Indian judiciary feature in the headlines for a variety of reasons. First, there was the triple talaq judgment. A five-judge bench (comprising of justices from five different faiths) of the Supreme Court, by a thin majority, ruled that the practice was unconstitutional. The reasoning was varied. In essence, the practice breached fundamental rights. The court, however, did urge the legislature to take appropriate steps in due course. Many saw this as a development towards a uniform civil code (UCC) – though this inference is not wholly coherent. Whilst on the specific topic, the Supreme Court has spoken, a UCC will require much more meticulous reading and enhanced sensitivity to different practices across the boards. The underlying principle has to be one of balance. It should not be a code based on majoritarian beliefs and practices – but one based on neutral and combined understanding.
The second judgment that the Supreme Court delivered was the ‘privacy’ judgment. After much deliberation, a nine-judge-bench upheld privacy as a fundamental right. This was a unanimous decision. All previous laws were declared invalid. The repercussions of this decision will be felt for many years to come. In times of increasing technical reliance by the state, this verdict will provide as a yoke to ensure accountability and uphold human dignity. Opinion in the judgment also notes the right to sexual orientation as one within precincts of privacy. This provides for a robust challenge to Section 377 of the Indian Penal Code.
The third notable action by the judiciary were comments by the high courts of Punjab and Haryana. In an unfortunate turn of events, violence – concentrated in Panchkula – claimed 30 lives and disrupted life. The high court came heavily on the state government. The court said that the government had let “Panchkula burn for political benefits“. Additionally, they noted that the government “surrendered to the deras for vote banks”. These comments by the court certainly give the politicians, voters and the state machinery much to ponder over.
The courts have an indispensable role to play in any constitutional democracy. Our constitution provides for an excellent mechanism, giving the courts the power to enforce constitutional rights. This ensures a well-balanced relationship between the legislature, the executive and the judiciary. It is, of course, a delicate balance to maintain – to ensure independence of all the three organs whilst also upholding constitutional values. B.R. Ambedkar, the architect of the constitution, referred to Article 32 of the constitution as the “soul of the constitution and the very heart of it”. It is this provision (alongwith Article 226) that empower the courts to enforce rule of law and constitutional principles.
The month of August has, in multiple ways, demonstrated how important a role the judiciary plays in our democracy. The task before the judiciary is never easy – balancing rights, maintaining independence and pinning accountability. During the days of the Emergency, the late Justice Khanna stood up to the might of the then authoritarian government. In a case, in which he upheld the right to life and liberty – even in times of Emergency – he found himself in the minority. He is known to have said to his sister, before going to court on that day, “I have prepared my judgment, which is going to cost me the chief justice-ship of India”. Sure enough, it did. Ignoring tradition and precedent, he was not made the chief justice. His opinion however, has inspired generations of lawyers and judges.
Judicial function is a delicate one. Developments in the last month alone have shown the importance of judiciary in a functioning democracy – to assist, reflect and question. This only reinforces the importance of an impartial, strong and reflective judiciary. It also opens the doors of discussion – on separation of powers and how we are to be judged.
Vishavjeet Chaudhary is an assistant professor at O.P. Jindal Global University.