In his latest interview, the Chief Justice, Dr. DY Chandrachud, makes interesting observations on the function of the apex court. In the context of the abrogation of article 370 his observation that a judgment delivered by the Court becomes ‘public property of the nation’ stands out.
What does it mean when the CJI equates judgment of the Court with ‘public property’? Strange as it might seem, the phrase does not carry any substantive meaning in either legal or political theory. There exists no understanding of what could be called ‘public property’, except that criminal law protects it as state-owned property. Our understanding of judgment as public property thus leads us nowhere.
The CJI might instead have used ‘public property’ symbolically. However, to understand this we must attach it with the latter part of the phrase – ‘of the nation’. It is interesting that the CJI gives meaning to public property by attaching it with nation, and not people.
What is a nation and how is it different from a state? While a nation is a product of culture fed by the psychology of belonging (with its social, political, and economic implications), the state is a formal entity that confers authority, distributes it, and accepts safeguards against it. In a strictly legal sense, the courts are concerned with the formal institutions of the state, how they function and in what ways they can help flourish the lives of the subjects of the state. In this exercise the courts are guided by a formal document called the Constitution whose interpretation is guided by legal and not political tools of understanding.
The legal tools, while aiding the Court in interpreting the constitution, do not engage in value judgment over a certain way of life as a citizen. The Courts in their everyday function seldom venture into the idea of nationhood. When they do, the exercise is guided by constitutional values and the history of constitution-making. For instance, the preamble to the Indian constitution situates nationhood in the ideal of fraternity.
How does the CJI define this nationhood? In the interview, he does not. But then his recent remarks on how certain cultural traditions and ideals populate our understanding of the constitution do give us an understanding of what he might have meant. While outside the Court the CJI is a citizen of this country who enjoys the freedom of personal thought and expression, it cannot be denied that his personality still carries the weight of justice. His behaviour informs the image of the court, and his words inspire the call for justice.
If nationhood, defined in a certain way, indeed informs our understanding of the constitution, it becomes difficult to detach the legality of statehood from the culture of nationhood in the longer run. The constitution becomes a historical document and culture dominates its interpretation over and above the commitment to legality. If judicial function is guided by history, justice gets historicised as well.
The CJI might have engaged in oratory, but it cannot be devoid of any meaning. The Supreme Court in recent times has behaved in an unconvincing manner. Its methodology in arriving at the Ayodhya and the Kashmir verdicts has raised many eyebrows. In this context, it becomes essential to understand and estimate the contours of judicial function, more importantly judicial discretion, and ethics.
The Supreme Court is a court of justice. This is what allowed it to go beyond the usual rules of constitutional interpretation and foreground a basic structure to the constitution. The purpose of basic structure is to seek protection from transgressions by other organs of the state. It does not regulate the behaviour of the judiciary. It is assumed that this aspect is guided through an inherent approximation of the role of judiciary with the delivery of justice. This is a function in hope and consideration – the fundamental aspect of judicial role in a constitutional democracy. This role does not seek justification through any additional values.
What sort of arguments could be labeled as legal arguments is an interesting enterprise. Every other argument must pass the filter of the legal language to gain validity in the judicial discourse. For instance, every endeavour to seek constitutional protection of citizens must attract the legal category of fundamental rights, and every such invocation must be tested against the existing jurisprudence on the subject.
Similarly, the questions of belongingness are discussed through citizenship, and the values that allow such scrutiny exist in the language of the provisions, their constitutional history and in the previous judicial pronouncements. Any additional element routed through judicial discretion is read with strict observance. There exists no other value nor any other motivation for the constitutional courts in deciding the disputes before them.
Where the judicial psyche is guided by the culture of nationhood, the legality of statehood gets threatened. If culture attains the justification of law, the line separating the nation from the state gets blurred, and judicial decision becomes a tool to homogenise the subjects of the state.
If indeed judgments are public property, they belong to the people. If people in constitutional terms are to be equated with nation, the ideal of fraternity must inform such interpretation, and not any other identification.
The emerging trend demonstrating this substantive shift from law to culture in the judicial psyche sounds dangerous. It threatens the existence of constitutional secularism as much as the interpretative tradition of the positive law.
Nizamuddin Ahmad Siddiqui teaches at Jindal Global Law School, OP Jindal Global University, Sonipat.
