Chief Justice of India Dr. DY Chandrachud delivered a speech on ‘Role of Courts in humanising law’ at the Oxford Union Society.
He thanked the Oxford Union for the invitation and talked about the close connection that he has developed with the University of Oxford over the years. The essence of the Indian Judiciary is to provide a space for democratic dialogue, for reasoned dialogue where logic prevails over the passions of the moment.
CJI opened his lecture with story of Billy Budd, who is a sailor and stutters while he speaks. When accused of mutiny he was unable to defend himself due to his vocal disability, out of rage of being unable to express himself, he striked at the accuser, killing him on board. The Judge adopted a formalistic interpretation of the law and convicted Billy. CJI said that Billy’s story offered two thought provoking insights, first, is the purpose of the law to provide unjust outcomes and second, what should be the approach of judges in adjudicating upon such cases?
Talking about the purpose of law, he said that the purpose is to bring orderliness and certainty in our society, it humanises people. Laws convicting persons for murder, war crimes, genocide and clearly to protect humanity because they provide an institutional framework to combat the dehumanising effects of human transactions. He said that he administers law as a judge of a contemporary Supreme Court in independent India, but he is deeply conscious of the fact that the same law which can be an instrument of justice, was a form of colonial oppression in the years before Independence. So, the way the law is administered defines the course of justice. He said that it is primarily because the State may adopt a purpose-oriented approach while enacting laws, which may have consequential impact on constitutional values such as justice, equality, liberty, dignity and individual autonomy. He also discussed that this purpose-oriented approach of the modern State, predominantly reflects the provisions which deprioritise rights of individuals to achieve a larger and collective good particularly in legislations dealing with areas of economic development and national security.
He added,
“A State which is vested with the power to protect the rights of the persons may adopt a paternalistic approach by viewing citizens as subjects, and not as persons. The second way in which law dehumanises is by not granting institutional recognition or by granting partial institutional recognition to personhood.”
He said that the lack of institutional recognition not only impacts the individual in the public sphere, but also their roles in the private sphere, because the lack of public recognition diminishes personhood. This approach to dehumanisation is usually adopted by States in legislations which entrench the social discrimination faced by groups. The denial of the right to vote to women in history is an example and the dehumanisation of women due to partial institutional recognition subjugated women not only in the public sphere, but also in the private sphere.
He elaborated that the third way in which the law dehumanises the beneficiaries is by the use of humiliating statutory language. “Dehumanisation language contributes to dehumanising behaviour.” In this context, he took the example of Article 335 of the Constitution of India which states that the claims of the members of the scheduled castes or the scheduled tribes must be taken into consideration consistently with the maintenance of efficiency of administration. He highlighted that the Constitution does not define what is meant by ‘efficiency’, but Supreme Court in 1960s and 70s had interpreted this provision to mean ‘merit’ and observed that reservation or affirmative action leads to a dilution of efficiency or merit and this interpretation leads to dehumanising inference that students who have secured seats through affirmative action are less competent.
He then highlighted two of his recent decisions, he has read the word ‘efficiency’ as an elucidation of the principle of equal opportunity, arguing that there is greater efficiency in our services if there is an equal representation of members belonging to the marginalised communities. Further, he said that if ‘merit’ is defined in terms of inclusion and not exclusion, there is an intrinsic virtue in bringing those who have been in the marginalised segments of our societies into the mainstream, by giving them equal opportunity to succeed in the social transformation.
Regarding the ways to rectify dehumanising by law, he said that the easiest way is obviously to re-humanise the law itself. The law can be humanised by expunging the use of humiliating statutory language, by granting institutional recognition to persons and by balancing the rights of individuals with the weighty purposes of the State. However, he said that this does not translate into reality for numerous reasons. The laws are improved through incremental steps, the State may be unwilling to balance rights against weighty purposes and the legislature may assume that the terms used are more widely understood and this is where the Courts step in.
He said that the laws can be humanised when a judge adopts a nuanced and humanising approach towards adjudication. There are five core components to the humanising model of adjudication in the contemporary Courts. The first is humanising through judicial review. He cited the Anuj Garg v. Hotel Assn. of India, (2008) 3 SCC 1, wherein, the Supreme Court struck down a law which barred the employment of women in the establishments where liquor was sold for public consumption, observing that the law was victimising its subjects in the name of protection. Further, he said that the humanising approach is also evident in the expansive reading of socio-economic rights and cited the Olga Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545, wherein the Supreme Court recognised the right to livelihood of citizens who were slum dwellers. He added that these decisions of the Supreme Court recognised citizens as persons and not as subjects, who required some basic conditions to live a life of diginity.
The second component of the humanising approach emphasises procedural justice. He discussed that in the Media One case, the Court was called on to decide if the disclosure of material in a sealed cover to the Court in the exclusion of the litigating party was valid. He said that the Supreme Court for the first time applied a heightened standard of proportionality to review the infringement of procedural rights.
The third component is the necessity to understand the unique lived experiences of the parties. Discussing of this experience he posed the questions such as- what if the victim of rape is not just a woman, but a minor and what if the minor girl is also a differently abled? He said that the law is general and rigid. The core in the art of adjudication lies in the ability to understand and sympathise with the lived experience of the parties.
The fourth component of the approach is humanising the language which is used in the judgments. He illustrated that the writ of ‘habeas corpus’ literally translates to a remedy of ‘producing the body’, and the Court while dealing with cases seeking this writ must humanise the detenue. He remarked that behind the body, is a face, a human soul, a mind, living being. He said that in judgments, the Court must not refer to members of a backward class as a ‘lower caste’, the appropriate term is ‘marginalised caste’.
For the fifth and final component he said that the humanising of the justice delivery mechanism is itself one. The justice delivery system, like the law, also has the potential to dehumanise. The long queues for filing of cases, the hassle of checking status of filings leaves parties dehumanised by the end of it. He said that the use of technology has been incorporated in the administrative functions of the Courts, which enables litigants to complete the procedural requirements from the comfort of their homes or internet centres. He remarked that this technological intervention has humanised the process for the parties and the administrative staff of courts.
On the use of Artificial intelligence, he said that it is replete with unique possibilities for the future, however, it must be ensured that we impose guard rails which would control it and not shift the process of adjudication from a Judge to a robot.
