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Above: CJI Dipak Misra speaking at the M C Setalvad Memorial Lecture/Photo: ANI  

At the annual Bar Association of India-organised M C Setalvad Memorial Lecture at a hotel in New Delhi on Thursday (July 27), Chief Justice Dipak Misra made a quiet comment within the ambit of law, in which he supported free speech and creativity and how India’s justice system resonates with the values derived from such creativity, resulting in the vibrant society and civilization that is India today.

Without mentioning or assigning any backdrop to his comments, Justice Misra said: “Recently, in Viacom 18 Media Private Limited and Ors the Court ascended the right of freedom of speech and expression and it lifted the ban imposed by four States for screening the movie ‘Padmaavat’ by holding that the expression of an idea through the medium of cinema which is a public medium has its own status under the Constitution. The Court went on to observe that if intellectual prowess and natural or cultivated power of creation is interfered without the permissible facet of law, the concept of creativity paves the path of extinction; and when creativity dies, values of civilization corrode.”

It was a strong message amid the social unrest being created in the country by certain interested groups. It also sent the message of the unique position that the judiciary of the country holds in upholding values that create the right people of the future.

Justice Misra’s speech was on the subject: ‘Dynamic Ascendance of Constitutional Rights – A Progressive Approach’.

Also present on the occasion were Justice Gita Mittal, Acting Chief Justice of Delhi High Court, Lalit Bhasin, President, the Bar Association of India, Prashant Kumar, President-elect, the Bar Association of India, Yakesh Anand, General Secretary, the Bar Association of India and others.

Justice Misra said: “Constitutional rights define and shape the life of citizens and societies in general… These rights would become a dead letter without their dynamic, vibrant and pragmatic interpretation.”

In arriving at this, Justice Misra took the august audience through a development process in which he elaborated how important it was for the constitution to be not a static thing, but a dynamic, ever-changing, every-growing animal. He said the constitution “…is an ever-growing thing and it is perpetually continuous as it embodies the spirit of a nation. It is enriched at the present by the past experiences and influences, and makes the future richer than the present. The same has been laid down by the Supreme Court in a number of cases, recent authority being Manoj Narula, wherein the Court recognized the dynamic nature of the Indian Constitution and observed that it is a living document with capabilities of enormous dynamism. It is a Constitution made for a progressive society and the working of such a Constitution depends upon prevalent atmosphere and conditions.”

He had prefaced this part by elaborating how constitutional rights were different from fundamental rights, and then saying: “…when we talk about constitutional rights it has to be firmly borne in mind that when the expression ‘rights’ is qualified by the term ‘constitutional’ then such rights no longer remain stagnant and confined, rather constitutional rights are also ever growing, perpetually continuous and embody a telescopic and expanded vision for a nation to enrich the future life of its citizenry.”

He talked about how the top court has touched “…upon every sphere of human life, beginning from right to life with dignity, right to livelihood, right to clean air and water, right against bonded labour, series of rights of an accused in the criminal justice system, right of women against sexual harassment at work place and so on and so forth.” Hence he stressed upon how “The Constitutional Courts have, thereby, assumed the role of an ardent guard for strengthening democracy in our country.”

He also talked about “Constitutional Courts that grants protection against arbitrary State actions and also makes the law made by the legislature susceptible on the foundation of arbitrariness which encompasses reasonableness.”

Then again, he talked about “Article 15, which prohibits discrimination against citizens on the grounds of religion, caste, sex, race or place of birth. The exceptions to Article 15 in the form of clauses (3) and (4) are more important than the Article itself and demonstrate the dynamic nature of Constitutional rights as they allow the state to take affirmative action for the upliftment of a certain class of citizens. Both Clauses (3) and (4) of Article 15 are provisions which allow the State to undertake affirmative action through the Executive or through the Parliament, exercising its constituent power or its legislative power.

“Clause (3) to Article 15 enables the State to confer special rights upon women and children. Article 15(4) is also another exception to the main clauses of Article 15 as it enables the State to make special provisions for advancement of socially and educationally backward classes of citizens, Scheduled Castes and Scheduled Tribes,” he said.

He referred to the Maneka Gandhi case where Article 21 has been interpreted. “A plethora of rights have been recognized as facets of Article 21 because of judicial creativity,” he said. “The progress of Constitutional rights under Article 21 which guarantees Right to life and Liberty has been the most gigantic. In the 1960s, the Court in Kharak Singh refused to give personal liberty a narrow definition limited to bodily restraint or confinement to prisons but rather defined it as a compendious term including within itself all varieties of life that go on to form the personal liberty of a man other than the those dealt under Article19(1). In the 1970s came Maneka Gandhi which became the cornerstone of progression of Constitutional rights opened a whole new space for the right of personal liberty. The Court interpretatively conceived a new interrelation between Articles 14, 19 and 21 and observed that a law which deprives a person of his personal liberty must not only stand the test of Article 21, but it must also stand the test of Article 14 and 19. What the Court meant was that for depriving a person of his personal liberty there has to be, not only a valid law prescribing a procedure but it must also be reasonable, in view of Article 19, and it must not be arbitrary too, both from procedural and substantive point of view, as per the Article 14.”

He also referred to the “most significant ruling of the recent times in K S Puttaswammy, where the Supreme Court lifted the right to privacy to the pedestal of fundamental right protected under article 21 of the constitution. This ruling has also paved the way for enormously enlarging the scope of constitutional rights protected under article 21.”

In passing he also referred to the Shafin Jahan case, popularly known as the Hadiya  case, regarding the right to choose partners by consenting adults.

—India Legal Bureau

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