On this Republic Day, like every day, we should think about the Constitution of India. Especially in the context of a major concern of the freedom struggle that gave rise to it: justice. It is the first mention of the preamble that we have collectively resolved to secure for all citizens. This year’s context, as it happens, has been marred by a standoff between the judiciary and the government over its demand for a formal say in the appointment of judges, which is currently done by a former collegium headed by the Chief Justice of India. Is. It is unfortunate that individual names have been dragged into the fray, but it has already happened. Willy-nilly, the candidature of senior advocate Saurabh Kripal has become a topic of discussion. Proposed by the collegium for the post of Delhi High Court judge in 2021, his name reportedly moved to central merit over his sexual orientation, with odd questions raised over possible bias in its account. The country recently legalized same-sex intimacy for consenting adults after the Supreme Court struck down an outdated law and upheld the need for justice to keep up with the times. In order to maintain that reform spirit at all levels, sexuality should not disqualify anyone. This is plainly unfair.
Like the Indian Penal Code, whose Section 377 on “unnatural offences” was a colonial relic of blinkered times, our Constitution is also a ‘living document’, open to amendment as society evolves and our eyes open. Its text never claimed completeness and has undergone many twists and turns since 26 January 1950. It lends weight to the argument that what it says should be a close function of the popular will, as voiced by leaders elected to the legislature, a point the ruling BJP dispensation has been making lately. On the legal reforms that give the mantra of progress, it is certain. But what about judge selection? Like a work of meta-fiction, it exudes a self-referential complexity. Unlike AI chatbots that use algorithms to provide a single answer, courts often issue judgments with views that differ within the scope of the same statute. One outcome could hinge on a bench’s vote, a tool that allows for a judicial balance that can change over time on the same case, as we saw on LGBTQI+ rights. As a lawyer and close observer, Kripal has noted a gap of perspective within the court benches at the literature festival. In this count these viewpoints can be conservative or liberal, right or left and pro or anti-centre, but since judges have room to diverge on the issues, this should not be taken as an ideological or party sign. Bent. On the symbiosis of law and society, Kripal was quoted as follows: “Law reflects what society is because, after all, you can’t stray too far from what you think people need and want.”
What is considered socially appropriate or common sense can be transformed in dramatic ways; It would be strange for a democracy not to amend the rules for this. Nevertheless, as there is no consensus as to an electoral majority, all changes must be kept within the basic framework of the constitution. Any change must be in consonance with the core promises of justice, liberty, equality and fraternity, which form the basis of Indian integrity, unity and stability. And if any proposal is likely to have an impact on these integrated units, it must be tested against what we as citizens will be bound by. This wisdom guided our Constituent Assembly seven decades ago. Today, this explains our need for constraints on political authority. A stable republic is, after all, a strong one.
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