(Kedar Ganesh Dhargalkar is a Third year student at Adv. Babasaheb Apte College of Law, University of Mumbai)
Featured Illustration – “Allegory of Justice” by Luca Giordano
Standing firmly on the bedrock of moral ideals given by western liberalism, today the ‘progressive realisation of rights’ has ensured a judicial revolution of sorts, in the interpretive realm of fundamental rights.This doctrine essentially advocates a rights-oriented approach in the matters of judging the constitutionality of various legislative actions. It does not identify much with the notions of populist constitutional law, considering its dogmas to be established on the grounds of ‘majoritarian sentiments’. This rights-oriented jurisprudence keeps fundamental rights at the forefront, while adjudging the vires of legislations. The court categorically recognized this doctrine of constitutional interpretation, while adjudging the wide breadth of the ‘equality clause’ of our constitution and extending its scope to include ‘gender justice’ and ‘right of sexual orientation’ in the Navtej Singh Johar case. Misra CJ made an observation of the fundamental-rights jurisprudence from a bird’s eye view and noted, “When we talk about the rights guaranteed under the Constitution and the protection of these rights, we observe and comprehend a manifest ascendance and triumphant march of such rights which, in turn, paves the way for the doctrine of progressive realisation of the rights”[i]. The aforementioned rationale is flawed on at least three counts.
Firstly, it assumes that a unidirectional approach entrenched in few constitutional precedents, is a fair ground to justify a judicial ideology for the interpretation of Part III, thereby completely disregarding the popular dissents which advocated constraining the rights of the citizenry. Secondly, the learned judge furthers yet another doctrine as a part and parcel of the aforementioned approach, by observing that, “The doctrine of progressive realisation of rights, as a natural corollary, gives birth to the doctrine of non-retrogression. As per this doctrine, there must not be any regression of rights. In a progressive and an ever-improving society, there is no place for retreat. The society has to march ahead”[ii]. Without debating who should decide the direction of the march of society, this inference is solely based on the hypothesis that, conferring rights when they’re demanded is the only way to go and has little regard for reasonable restrictions which are constitutionally mandated for ensuring the enforcement of the fundamental duties and or directive principles of state policy. The finding of the court essentially means that, the contours of reasonableness of restrictions over fundamental rights, have been excessively dwindled and tapered off, for ensuring maximum advancement of rights. Due to the blurred lines between the ratio and obiter of that judgement, this observation is open to be used as a precedent for extending more unenumerated and unwarranted rights based on varied judicial notions of progress. This would frustrate the noble ideal of rule of law because, such a judicial enforcement of newfound and ever-experimented morality, won’t always carry the weight of a democratic acceptance.
The doctrines of ‘progressive realisation’ and ‘non-retrogression’, would suffocate the free breath of establishing and adhering to some new foundational ideals of the upcoming generations, which may run contrary to today’s ideals of progress. Justice William J. Brennan, Jr., in his book, The Constitution of the United States: Contemporary Ratification, in Interpreting the Constitution: The Debate Over Original Intent, had observed that, “What the constitutional fundamentals meant to the wisdom of other times cannot be their measure to the vision of our time. Similarly, what those fundamentals mean for us, our descendants will learn, cannot be the measure to the vision of their time”[iii]. Though this observation was referred and reiterated by the Apex Court in the NCT case, for furthering the ‘living constitution ideal’, it still vitiates the tenets of ‘non-retrogression’, which doesn’t allow a deviance from a fundamental furtherance of rights in the interpretive lights of the court. In essence, due to its disregard for social morality and other ‘majoritarian’ principles, ‘progressive realisation’ will not admit a reasonable curtailment of rights, even if the contemporary society feels the need to do so and this frustrates the very object for which it was instituted. Therefore, the doctrine of ‘progressive realisation of rights’ coupled with ‘non-retrogression’, ends up being a one-way street which hampers the social and jurisprudential balance.
SOCIAL INVALIDATION OF TRANSFORMATIVE JUSTICE
All this begs to decide the questions, what exactly is excessive progression and does it necessarily advocate furtherance of individual or minority rights as the only rational-way of interpreting the constitution? Does a strict adherence to its tenets really culminate into fruition of constitutional goals and ideals and more importantly, is the judicial legislation of such issues sustainable in the social sphere? The author submits that, the march of judicially-recognized rights, must be in tune with the march of societal evolution and must respect the doctrine of populist constitutionalism. Moreover, it is also necessary to respect the legislature as an institution which is a participant in the process. It is noteworthy that the Indian Constitutional Court is well-known for carrying out transformations, which the political authorities were unable to give effect to and in some instances, judicial recognition of unenumerated constitutional rights, has catalysed changes concerning the protection of those ‘vulnerable individuals’. But herein, the danger of the Court turning into a playground for interest groups that seek an advancement of their selfish interests, by the means of deliberate and tactical litigation, must be noted. Often, an over-activism of judges constricts the legislative deliberation in the houses and reduces the democratic debate to a mere constitutional argumentation. All this cumulatively culminates in judicialization of politics and over-constitutionalizing of justice. In their crusades of constitutional justice, the ambitious verdicts of Indian constitutional benches, can end up being ineffectual and barren. These recent judgements in the fundamental rights arena, are defeasible and far ahead of their time. They require an active co-operation of the society and not to mention, even of all the organs of the government. Failure in fulfilling the court’s directives might increase distrust in the institutions and also shake the popular faith in attainment of constitutional justice. The social justice in Indian Preamble is not warranted to be invoked only and only, at the happenstance of a minority or individual rights case. Ultimately, when the law does not cater to the society, or if it thwarts its demands under the terminological abstraction of ‘majoritarianism’, it is again a fraud on the preambular goal of ensuring the achievement of social justice.
IMPASSE IN THE EXCESSIVELY-PROGRESSIVE REALISATION OF RIGHTS
The interpretive experimentation by the judiciary essentially struggles for characterizing and illustrating a ‘constitutional culture’ so as to buttress the imposition of its standards of morality which, though envisaged first in the constituent assembly, has been evolved through recent precedents in the country’s constitutional jurisprudence. But what are the goals of this constitutional culture? Can these constitutional ideals be identified, articulated and enforced? If yes, then which goals are to be prioritized by the courts? The process of progressive realisation is founded upon a presupposition that it is easy to determine the goals of the constitution. Our current perception of constitutional interpretation rests upon the foundation that,the judiciary must evaluate these goals and come up with the most appropriate ways to address conflicting goals within our legal texts and precedents.Be it the broad principles of equality and liberty, self-rule and the rule of law, human-rights values and pluralistic accommodation, all these are parts of clashes in constitutional adjudication, and prioritizing one over the other is a difficult task for the courts. An increasingly preferential treatment to individual rights on the basis of a self-founded judicial idealism, might upset the ethnic inclusiveness and multiculturalism which is harmoniously grounded in our demography.Progressive realisation of rights might fall short of achieving such broad goals of achieving full intersectional equality between different societal factions. It might be argued that, on the one hand, as these modifications have been unsuccessful in achieving the goals set by the constitution, the Court should further seek and pursue its transformative role. But on the other hand, the Court is becoming the only arena for solving deep-rooted societal conflicts. This centralization has indisputable side effects which possess the potential of impeding the judicially thought-out social revolution. This culminates in an impasse; if the Court relinquishes its role of promoting and advancing such evolutionary precedents, the judicially-recognized constitutional-objectives, concerning the realization of rights, the rule of law, and a deliberative democracy will never be achieved in full. Nonetheless, if in turn, the Court maintains with its jurisprudential overhaul, its judgements might not always spawn the transformative ramifications, which were sought-after by the court.
REALIZATION OF CONSTITUTIONAL GOALS: A COOPERATIVE TASK
There’s a reason why the framers envisioned a narrow scope of judicial review and preferred a detailed written constitution, because no matter how articulate the judicial interpretation is, it’ll always remain subjective and would be subject to constant overruling of precedents, one generation of judges after the other. Constitutional law should not be subject to such constant amendment, overruling of precedents and replacement. It should possess stability, because it is the only law which captures and regulates most innate aspects of an individual life as well as of the collective societal life and more importantly, it needs to be rigid so as to not facilitate a change at the whims of any organ of government. The thin line between textual flexibility and rigidity, must be balanced, for avoiding a complete overhaul of the text and also for avoiding the laws from getting deadlocked to the past. These grounds have been identified by the judiciary, either to constrict the attempts of some super-majoritarian parliaments or for taking the law towards the future, when it felt the need to do so. Herein it is noteworthy to be observed that, constitutional law is subject not just to a legislative revamp by amendments, but it is also subject to substantive changes by an interpretive revamp at the hands of the judiciary. All the branches of government have a collective responsibility in contribution for achievement of social stability, for making strides in the evolution of constitutional lawor in making a stable transition of societal moralities, by the virtue of the laws they make or by the precedents they set.
CONCLUSION
In light of these arguments it is advisable that the interpretive approaches of Pragmatism and Originalism need not be construed as diametrically contradictory to one another, at every instance. These ideologies of judicial interpretations need to be harmoniously resorted to, instead of adopting a singular approach. Like Lord Hanuman speeding impulsively at the Sun, thinking it’s a fruit, the Indian Judiciary is chasing its dream of a legally-enforced egalitarian society, without considering whether the society is ready for such enforcement and without recognizing this job as a constitutional prerogative of the legislative organ of governance, i.e. the Parliament. Herein, it must be accounted for that, such noble and idealistic motives are never to be blamed. Indeed, one should aim for social perfection but being a constitutional institution, the judiciary should never forget the scope of its potential and the parameters or boundaries of its powers, for eventually it may end up biting more than it can chew. As the saying goes, excess of anything is poisonous, the progressive interpretation of rights must be in conformation with the rate of social progress. Furthermore, some radical changes in constitutional law, warrant institutional constraints which should be observed by the other organs, for upholding the spirit of separation of powers. It is accounted for that, though the judiciary has developed a temporarily-serving, superfluous propensity for advancement of individual rights, it was evolved by the courts while adhering to their institutional obligation of abiding by the constitutional culture and to their noble motive of realization of constitutional ideals.
Nevertheless, the bar of presumption of constitutionality and of the trust in legislative action must be raised dramatically, so as to honour the mutual institutional interdependence of the two organs. The courts may consider adopting an expectation of social adaptability from the minorities or individual petitioners, in the cases involving certain social inconveniences. Though it is open to do so still, while furthering more rights, the courts are expected to have a due consideration for self-control and social abidance of moralities by interest groups and other individuals, before it gives in to their cries of dissatisfaction.
Finally, a basic fact must be understood that, though the judgements which entrenched such transformative values, are regarded as ‘landmark’ today, yet in their own times, they were minority views. Over time some of those dissents have become the law, but prior to a protracted judicial evolution, they were entrenched in the law of the land which people adhered to and were governed by. It took a couple of generations to pass by, for the judicial validation of these overarching ideals, which might momentarily be considered as ‘progress’. But from this exact chain of events a deductive inference can be culled out that the definition of ‘progress’ might waiver and sometimes become diametrically opposite of its predecessor, with an emergence of new value systems in the society.
Therefore, it would not be the wisest course to hasten this ‘progress’ by judicial realization of rights, nor would it be moral to constrict the future generations in these precedential shackles which constrict the direction and definition of progress. Conclusively, if at all the judiciary feels the need to distrust legislative wisdom in dissolution of social disputes, the standards of judicial consideration of social morality must be raised, the people must not be categorized as abstractions and a holistic approach of balanced constitutionalism must be judicially evolved for the gradual and consented injection of constitutional culture into the society.
[i] Navtej Singh Johar vs. Union of India (2018) 10 SCC 1
[ii] Supra Note 1
[iii] State (NCT) vs. Union of India (2018) 8 SCC 501
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