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Dr. Ram Manohar Lohiya National Law University, Lucknow, National Law University Odisha, Cuttack & CAN Foundation will be hosting the 2nd Justice H R Khanna Memorial National Symposium on July 3, 2022.

Register here
canfoundation.in/justice-Hr-kha…

Event commences. First Session will be presided over by Justice Vikram Nath, Judge, Supreme Court of India, who will be initiating the debate and delivering the keynote address on topic “Fundamental Duties vis-a-vis Fundamental Rights under Our Constitution”.

Thereafter, Senior Advocates NK Kaul and Sidharth Luthra will be taking the deliberation forward.

Advocate Aditya Khandekar welcoming the panelists.

#CANFoundation #FundamentalRights #FundamentalDuties

Panelists for the first session on “Fundamental Duties vis-a-vis Fundamental Rights under Our Constitution”.

Prof. Subir K Bhatnagar, Vice Chancellor of RMLNLU delivering the welcome address.

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The topic Fundamental Rights vis-a-vis Fundamental Duties is very apt for a discussion in present times.

We have always stressed on fundamental rights: Prof Bhatnagar.

But fundamental duties are also equally important.
Lord Kirshna in Gita says "karmanye vadhikarasthe.

American President John F Kennedy said "ask what you can do for your country.

But we should not forget Nazi Germany's Hitler also expressed similar sentiment: Prof Bhatnagar.

Fundamelntal duties originate in moral obigations and responsibilities. The genesis and existence of each society self-realised duties: Prof Bhatnagar.

Therefore, we cannot say only ancient Indian coeity was built on duties. But duty as dharma was not realised by other societies.
In ancient times, Indian society was well advanced compared to other societies. That is why we say are a duty-build society: Prof Bhatnagar.

When fundamental duties were inserted into our Constitution, I was a student. My professor was not in agreement with it. But now we see they are being interpreted in consonance with fundamental rights: Prof Bhatnagar.

For eg. sedition. It is the citizen's duty not to do anything seditious: Prof Bhatnagar.

But if we make tougher laws, there is possibility it can be misused: Prof Bhatnagar

Prof Bhatnagar concludes.

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Supreme Court judge Justice Vikram Nath commences address.

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A few days after my elevation to Allahabad HC in 2004, senior lawyer Ravi Kiran Jain presented auto biography of Justice HR Khanna - 'Neither Roses nor Thorns'.

I never thought I will be delivering an address in national symposium held in memory of Khanna J: Justice Vikram Nath

The darkest of times are truest test of character. The emergency was one of the most fateful events in the history of our nation when human rights were trampled: Justice Vikram Nath

Justice Khanna's carefully crafted dissent said Constitutional provisions operate only as safeguard for existing natural rights and right to life and liberty precede the Constitution itself: Justice Vikram Nath

Justice HR Khanna truly set a stellar standard efor the succeeding generation of judges to oppose forces of tyranny regardless of the personal costs one has to pay: Justice Vikram Nath

His courageous dissent in ADM Jabalpur is a testament to the fact that titles don't survive the ravages of time but it the substance of character which makes us truly legendary: Justice Vikram Nath

According to Bhagavad Gita, practising niskam karm, selfless action is the true sense of duty. The remarkable life of Justice Khanna is the most authentic example of this philosophy: Justice Vikram Nath

When I looked at the portrait of Justice Khanna while sitting in Court no 2, I felt extremely dwarfed: Justice Vikram Nath

As human beings we stand apart from other species. What sets apart is the sense of conscience and cognitive capacity to distinguish between right and wrong: Justice Vikram Nath

This ability has been the starting point of many civilisations the cradle of many of which has been our nation: Justice Vikram Nath.

Justice Vikran Nath referring to Pandit Jawaharlal Nehru's 'Tryst with Destiny' speech.

One reason to incorporate fundamental rights into our Constitution was the diverse population we have since we have many religious, cultural and linguistic groups. So in order to ensure sense of security and equality, basic fundamental rights were introduced: Justice Vikram Nath.

But it is only one of the pillars of the Constitution and cannot stand alone but has to be read along with fundamental duties enshrined in part 4A of the Constitution: Justice Vikram Nath

Excersising one's rights also entails respecting the rights of others: Justice Vikram Nath.

What is the right of an individual? Maybe the collective duty of others owed to him. It will be a flawed thinking if an individual feels his rights trump that of the collective: Justice Vikram Nath

In proper balancing of both, duty towards the social structure comes first followed be assertion of persons rights with respect to our contemporaries: Justice Vikram Nath

I am always of the view that duties have forever preceded rights in any era in any society. The edifice of Indus Valley, Mahajanapadas, Magadh civilisation were built on foundations of collective commitment to achieve common good, universal welfare, public benefit: Justice Nath

Our Prime Minister has always stressed on approach of "Thinking globally but acting locally"implying that our vision must be to compete globally whilst being equally concerned about interest and rights of all around us in our country: Justice Vikram Nath

The word 'locally' has great significance which means when we take our international goals forward, the domestic interests should not be lost sight of: Justice Vikram Nath

The concept of duties has deep roots in Indian civilisation where whole society setup is based on Dharma.

Dharma is a set of one's duties towards his family, society and nation: Justice Vikram Nath

The oft quoted saying which new generation has chosen to forget goes "Janani Janmabhumishcha Swargadapi Gariyasi'. This quote from Ramayana means 'mother and motherland are superior even to heaven': Justice Vikram Nath

This quote emphasises the duties we owe as son of soil and the land we are born in: Justice Vikram Nath

Justice Vikram Nath refers to Bhagavad Gita which says we only have a right to action and not to the fruits of it.

Justice Nath quotes Shri Rabindranath Tagore's poem from Gitanjali - Where the mind is without fear.

This pre-independence poem by one of the country's greatest thinkers is a realisation of a dream where countrymen awake and enjoy a life full of dignity and honour whilst being respectful towards each other: Justice Vikram Nath

When we look at international scenario, all developed countries gave a premium to duties over individual rights.

For eg, in Australia, Greece and Cyprus, there is explicit duty to vote under the Constitution failure of which is punishable: Justice Nath

Likewise Japanese Constitution lays greater emphasis on duties. There is duty to pay taxes, compulsory obligation to work for a minimum period of hours and civil responsibilities are enforced as codified laws: Justice Vikram Nath

China has enforced unique duties such as family planning and to compulsorily rear and educate children born in a family. The children in turn are obliged to maintain and support their parents: Justice Vikram Nath

After 42nd amendment, the then Law Minister HR Gokhale said that the fundamental duties were meant to have "a sobering effect on these restless spirits who have had a host of anti-national, subversive and unconstitutional agitations": Justice Vikram Nath

Fundamental duties have always preceded rights and they have to be seen in their entirety. The Supreme Court has also reiterated this view in a host of judgments: Justice Vikram Nath

Justice Nath refers to the judgment of the Supreme Court in Rural Litigation and Entitlement Kendra v. State of UP.

Justice Vikram Nath also refers to judgments in MC Mehta v. UoI, Ramlila Maidan, Sachidanand Pandey v. State of WB.

Justice Nath speaks about his experience as Gujarat HC Chief Justice during COVID-19 outbreak.

The govt was trying to implement lock down by issuing SOPs. In the process, there were many instances wherein SOPs would be violated: Justice Vikram Nath

Courts all over the country took up the cause to appeal to people to adhere to SOPs. So on one hand, courts were trying to protect fundamental rights of people who were suffering but at the same time courts were requesting them to adhere to fundamental duties: Vikram Nath J.

Me and brother judge Justice JB Pardiwala, who is speaker in second session, made repeated appeals to citizens to adhere to SOPs. We also issued innumerable directions to State for benefit of public: Justice Vikram Nath.

What I mean to say is performance of fundamental duties, there can be no enforcement under law. It has to be self-inculcated, self-understood and implemented: Justice Vikram Nath

I would say first duties should be fulfilled before expecting rights to be respected: Justice Vikram Nath

Existence of duties allows for enjoyment of rights. There is a fundamental duty for each basic right: Justice Vikram Nath

Justice Vikram Nath concludes.

Senior Counsel Neeraj Kishan Kaul begins his address.

Justice Nath touched upon the life of Justice Khanna. Truly he was a man of stellar character and integrity. His dissent in ADM Jabalpur would rank among the greatest dissents in Constitutional law anywhere in the world: Kaul

Fundamental duties are the guiding principles for citizens to be responsible towards the State. In India, they seek to achieve certain parameters of progress which cannot be achieved without citizens performing their duties: Kaul

The framers of the Constitution had not included fundamental duties in the Constitution separately perhaps under the belief that citizens would not only be well aware of it but would also follow it: Kaul

However, even at that point of time a Gandhian view of Constitution existed and Gandhi had said "The true source of rights is duties": Kaul

The Supreme Court of India recognised concept of duties much before it was inserted into Constitution by 42nd amendment: Kaul

Kaul refers to Chandrabhavan Boarding case, says Supreme Court held that Directive Principles give State powers to impose duties on citizens.

#fundamentalrights #fundamentalduties

Kaul tracing the history of how Fundamental Duties came to be inserted in the Constitution pointing out that it was indeed inserted during emergency era.

He, however, points out that during the debate on the bill, no one objected to the insertion of fundamental duties.

The debate on fundamental rights v. duties always assume that they are on a collision course which may not be necessarily true: Kaul

One of the main arguments is fundamental duties do not have legal backing. But some duties are protected by law and already are being enforced through law: Kaul

For eg. some provisions in IPC penalise acts disrupting sovereignty and integrity of India: Kaul

The scope of Article 51A was expanded in Ashok Kumar Thakur v. Union of India: Kaul

However, judiciary has not diluted importance of rights. We must not forget we are a rights based society: Kaul

The framers of our Constitution were of the same view and hence a right-centric liberal Constitution was envisaged: Kaul

Article 51A(e) talks about promoting harmony and brotherhood. This very much echoes idea of fraternity mentioned in preamble and is also an aspiration towards safeguarding minority rights: Kaul

The repercussions of not adhering to duties may be felt by the next generation which may then be faced with eventuality of curbing rights, or contracting some Constitutional principles: Kaul

Having said so, the essence of the Constitution is all about rights. Dr. BR Ambedkar had said in Constituent Assembly that fundamental unit of Constitution is the individual: Kaul

Non-fulfillment of duties cannot be a test of maintainability while enforcing fundamental rights. It may be a necessary condition in adjudicating bonafides and prejudices at a later stage: Kaul

Kaul concludes.

Senior Advocate Sidharth Luthra commences address.

Justice Khanna was a beacon of light during a time of darkness. We were confronted with a situation where citizens feared for their liberty and it was then one man (Justice Khanna) stood up to uphold the Constitution: Luthra

We need individuals like him to make this or any nation an far better place: Luthra

It is difficult to imagine existence of rights not coupled with duty: Luthra

Luthra refers to dissent of Prof KT Shah in Constituent Assembly when the report on rights was submitted.

It took many more decades before fundamental duties became part of Constitution: Luthra

Of course, there is an article which says reason for amendment to add fundamental duties was that then PM was unhappy about enforcement of rights against her and Supreme Court striking down Constitutional amendments such as in Kesavanada Bharati: Luthra

In my view, fundamental rights are a direct or indirect consequence of fair assertion of fundamental duties: Luthra

The concept of fundamental duties come from the term 'dharma'. Dharma being maintenance of peace, security and law and order within the larger cosmic order: Luthra.

The scheme of fundamental rights and fundamental duties must be seen as one - of creating responsible citizens. Fundamental duties therefore perform an educative role: Luthra

Fundamental duties do not act as a limitation but enhance the purpose of the Constitution: Luthra

Luthra concludes his address.

Bhavana Chandak, Associate at Kachwaha & Partners delivers vote of thanks.

First session concludes.

Second session begins.

Panelists for the second session on “Vox Populi vs. Rule of Law: Supreme Court of India”.

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In the Post-Lunch Session, the Presiding Guest, Justice JB Pardiwala (Judge, Supreme Court) will deliver the Keynote Address on the theme.

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It shall be followed by panellists including Senior Advocates Nidhesh Gupta and Siddharth Bhatnagar addressing the audience on topics revolving around the aforementioned theme.

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Advocate Sriram Parakkat is introducing the presiding guest and panellists.

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Parakkat: Before we begin the symposium, in the honour of Justice HR Khanna, I would request everyone to stand in silence for a minute.

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Prof Ved Kumari, Vice Chancellor of NLU Orissa, delivering the introductory address.

Kumari: Justice Khanna was known for his dissent.

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Kumari: The first part is Vox Populi v. Rule of law. I want to focus on Vox Populi as Rule of Law. When one talks of rule of law - there are three principles - equality, liberty and justice.

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Kumari: And I think as women in legal system and society, we do not have anything to do with rule of law. It is equality, but who is equal and how did this rule of law came about. There is a social contract and who are the parties. It was certainly not women, but able bodied men.

Kumari: People who got to do social contract, were supposed to be = free, equal and independent human beings. The social contract theory does not have care. It is about being free equal and independent.

Kumari: Independent means my rights versus the other. Care is connectedness with the other. Women’s perception is about connecting people to one and another. Fundamental duties is about me taking care of another.

Kumari: Fundamental rights is about I should have my own sphere of right of sphere to the exclusion of other. You constantly keep talking as being just and equal. Women are not recognized by law, forget vox populi. Women say that they are not natural guardian.

Kumari: She is to be worshipped but not given equal rights. Not given property rights.

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Kumari: Rule of law at this point in time, represents vox populi. IT is the public’s view point which is considered.

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Kumari: How the patriarchial notions of the society have come to be incorporated in Rule of Law, needs to be looked into.

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Kumari: It is people like us in the Universities who have to open minds on patriarchial philosophies.

Kumari concludes.

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Advocate Abhikalp Pratap Singh introduces the theme.

Singh: In a strong democracy like India, it is incumbent on courts to take decision concerning complex social issues.
there can be demanding situations where these two may work together, or antithetically.

Justice JB Pardiwala begins the discussion.

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Pardiwala J: In the first session I had the pleasure and privilege to hear my brother judge Justice VIkram Nath.
I have been requested to speak on Vox Populi v. Rule of Law, to pay tribute to the late judge Justice HR Khanna.

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Pardiwala J: “The world is divided into two types of people, those who want to be somebody, those who want to do something - said father of the European Union.
Justice Khanna is remembered over several judges, because did something which deserved to be remembered.

Pardiwala J: When I was in Rajkot (as a judge in Gujarat High Court), I was asked to address the district bar association.
I decided to speak on Rule of Law, least knowing that I would be talking the same as Supreme Court judge.

Pardiwala J: I said that there are two basic role of judge - to uphold constitution and rule of law and to bridge gap between law and society.

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Pardiwala J: I made the members recall to their memory, what J Khanna observed in the ADM Jabalpur case.
J Khanna observed “what is at stake is the rule of law. The question is whether the law speaking through the court shall be absolutely silenced and rendered moot”

Pardiwala J: It was J Khanna who spoke out fearlessly and eloquently for freedom.
New York Times wrote on J Khanna: “The submission of an independent judiciary to absolutist government is virtually the last step in the destruction of a democratic society..”

Pardiwala J: “and the Indian Supreme Court's decision appears close to utter surrender” the article reads.

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Pardiwala J: Justice Khanna belonged to that mantel who after becoming a judge maintained the highest standards in their judicial careers.

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Pardiwala J: I noticed that as a mark of respect, Justice Khanna’s portrait has been displayed in the court no 2 where I was presiding with a senior judge of Supreme Court.

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Pardiwala J: The times would run through and Justice HR Khanna would be remembered as Justice HR Khanna with none who can surpass him.

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Pardiwala J: Voice of the people is the voice of god, is mistakenly assumed as to how it originated.
Actually it was stated in a disapproving manner.

Pardiwala J: Balance in the intent between vox populi and meeting demands on the rule of law is an ardous exercise. It requires extreme judicial craftsmanship.
‘What will people think’ is something that comes to the fore judge thinks while penning a judgment.

Pardiwala J: The term ‘View of the public’ is not synonymous with people in general. I must say, that the term is quite misunderstood.
View of the people in constitutional context implies a segment of society which have common shared interest.

Pardiwala J: Rule of law is distinguishing feature of the Indian Constitution.
In countries which do not have parliamentary systems have rule of law, dictatorship can also claim that they rule by law.

Pardiwala J: This claim of distinguishing feature must be closely scrutinized with two factors.
1. mechanism of making of Indian laws - characterised by three ‘D’s.
The merits are discussed freely in press and on public platform.

Pardiwala J: In the legislative chambers, the elected representatives discuss. When it is passed, the validity is tested in courts of law.
Public Discussion, Legislative Debates and the Decree of Court are the three ‘D’s which distinguish indian law making.

Pardiwala: Courts come to have a decisive role and voice as to whether the laws are valid or not.
The Indian legislatures, Federal and state are sovereign no doubt, but their spheres are defined. The acts which are passed beyond this are liable to be challenged.

Pardiwala: The Constitution has been framed on the basis that the individual citizens are entitiled to certain fundamental rights which are enshrined in most important provisions.

Pardiwala J: Constitution also provides for regulation of these rights provided they are reasonable and in interest of public good.

Pardiwala J: The Courts are to pronounce their verdict on these principles. It is thus, that we claim that the rule of law is the most distinguishing feature of constitution.
I believe that rule of law must prevail, and public opinion has to be subordinate.

Pardiwala J: The former CJ of California High Court said “The judiciary must not take on the colouration of whatever may be popular at the moment. We are guardians of rights and we have to tell people things they often do not like to hear”.

Pardiwala J: I firmly believe it is for the highest court in the country to decide any issue keeping only one thing in mind and that is rule of law. The Judicial verdicts cannot be the reflection of the influence of public opinion.

Pardiwala J: Prof KT Shah opined that ‘vox populi’ must be included in the constitution as the will of the people was supreme. There were those against sovereignty, claiming people are not ready to make decisions on complex issues as literacy in them was less.

Pardiwala J: There is a school of thought which goes against this belief, and I believe in this school of thought.
It emphasizes on the belief that one ought to disassociate oneself from the majority and go by the rule of law.

Pardiwala J: I believe in a democracy we have a systematic agreement to lead by the court decisions. It does not mean that they are right and free of all other considerations.

Pardiwala J: We simply agree to lead by them. In a democracy, knowledge is more important than the systematic and blind obedience to the popular verdicts whether of the electorates or the courts.

Pardiwala J: While the judge’s role is to uphold the rule of law, but it is important to consider the sentiments of the society and the perennial effects of the judgment he delivers in exceptional circumstances.

Pardiwala J discussing jury system which considered majority opinion of people and hurts minority while the trained juducial minds upholds the letter of the law.

Pardiwala J: Trust on the judiciary over the juries led to the abolition of the jury system.

Finest example in modern times, where SC upheld rule of law versus majority opinion is the Navtej Singh judgment which decriminalised consensual sex between homosexuals.

Pardiwala J: Under our constitutional scheme no minority group must suffer deprivation of rights because they do not adhere to majoritarian way of life.

Pardiwala J: When we look at landmark verdicts of SC in Sabrimala, LGBT rights, those on death penalty, the friction between aspiration of society and the necessity of upholding rule of law comes to forefront.

Pardiwala J is discussing the Sabrimala judgement.

“The holy book in India is the Constitution of India… It is the will of the people. Statutory laws are creation of the legislators who are elected representatives.”

Pardiwala J: When the law in statute is in opposition to the will of the people declared in the constitution, the will of people will prevail.

Pardiwala J: The President, Members of the Parliament are all elected. The Supreme Court judges, High Court judges are not elected, they are appointed under the Constitution.

Pardiwala J: Yet the constitution confers power of judicial review under which the unconstitutional acts of the elected representative are nullified.

Pardiwala J: This does not presuppose that the judiciary is superior to both. The role of the judiciary is a pious trust reposed by the people.

Pardiwala J: On role of media, a trial is a process to be carried out by the Courts. However in the modern day context, trials by digital media are an undue interference in process of justice dispensation crossing that Lakshman Rekha many a times.

Pardiwala J: This is particularly worrisome when those section of people start scrutinizing the judicial process who possess only the half truth. Those for whom the concepts of judicial discipline, binding precedents and inherent limitations of judicial discretion are illusive

Pardiwala J: Social and digital media is primarily resorted to expressing personalised opinions more against the judges, rather than a constructive critical appraisal of their judgments. This is what is harming the judicial institution and lowering its dignity.

Pardiwala J: the constitutional courts have always graciously accepted informed dissents and constructive criticisms but their thresholds have always debarred personalised agenda driven attacks on the judges.

Pardiwala J: This is where digital and social media needs to be regulated throughout the country to preserve the rule of law under our constitution. Attacks of judges for their judgements lead to a dangerous scenario;

Pardiwala J: ..where the judges have to think what the media thinks, rather than what the law actually says. This puts the rule of law on the burner.

Pardiwala : Ignoring the sanctity of respect for the courts.

Pardiwala: A judicial verdict right or wrong is always by a court vested with powers under the constitution of India as court of record.
The remedy of any judicial order is clearly not available on digital or social media but before the superior court of law.

Pardiwala: India which cannot be defined as a completely mature or defined democracy, social media is employed frequently to politicize purely legal and constitutional issues.

Pardiwala J cites the Ayodhya case as an example which was a land and title dispute. HOwever by the time the final verdict came to be delivered, the issue attained political overtones.

Pardiwala J: It was conveniently forgotten that someday or the other some judge had to decide the contentious civil dispute which was indisputably the oldest litigation pending in the court of the country running into 38000 pages.

Pardiwala J: This is where the heart of any judicial proceeding before the constitutional court may disappear and the judges deciding the dispute may get a bit shaken whcih is antithetic to the rule of law. This is not healthy for the rule of law.

Pardiwala J: Another issue of discussion is the punishments in serious offences. Immense power of the social and digital media platforms is persistently resorted to for precipitating the perception of guilt or innocence of the accused even before trial is over.

Pardiwala J: This also sacrilegious to the rule when the issue is hyped or the accused is a big man. The society starts beliveing that the outocome of judicial proceedings ought to be nothing but conviction of the accused with extreme penalty for the accused

Pardiwala: Therefore regulation of the digital and social media especially in the context of sensitive trials which are subjudice must be considered by the parliament by introducing regulatory provisions.

Pardiwala J: There are provisions like the IT Act amendment, etc which may take care of such issues.
There are studies and recommendations suggesting ways and measures for handling perpetual problems of media trials.

Pardiwala J: Madrid Principle of 1994 discusses social media with judicial principles.

Pardiwala J: The Madrid principles states that it is the right of the digital media to collect and share information with public on the administration of justice however, with appropriate checks and balances.

Pardiwala J: Judiciary cannot exist independent of the society and the interaction is inevitable, but the rule of law is unsurmountable.

Justice Pardiwala concludes.

Senior Advocate Nidhesh Gupta commences his address.

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Gupta cites Mahabharat which mentions dharma’.

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Gupta: We have rules which are based on misconception. Caste system is one. In scriptures it was based on ‘gunas’.

Gupta: Yet we have a plethora of law which misunderstood this based on wrong public understanding and we have a mess of the caste system.
One of the problems of Vox populi, is its usage in shaping judicial verdicts, because it is determined by political, religious sentiments, etc

Gupta: Public opinion is not based on the judicial considerations and open to be moulded by the digital media.
The general public is conditioned to think about particular situation in a manner being constantly fed that narrative by the media.

Gupta: General public are not trained to understand the intricacies of law. They are not trained to consider the judicial precedents, evidence.
Any incorporation of public opinion in judicial process is fraught with the inherent risk of ignoring the purpose of law

Gupta: This is evident from the jury system of our country which was abolished eventually.

Gupta says the Nanavati trial was another example which led to abolishing of jury trial.

Gupta also refers to the defamation trial of Johnny Depp and Amber Heard.

#JohnnyDepp #AmberHeard

Gupta: The public opinion on the trial of Depp and Heard was pronounced much earlier than the jury verdict.

#JohnnyDepp #AmberHeard

Gupta: Amber Heard’s depositions were converted into mocking memes and circulated by millions on public platform. I thought it was a typographical error, but I found the hashtag #JusticeforJohnnyDepp received 20 billion views.

Gupta: The jury had access to all the ridicule that Heard was being subjected.
During OJ Simpson, the jury was subjected to isolation for 265 days to keep public opinion out of the way.
The ultimate verdict was dependent on the portrayal of central characters.

Gupta: Depp’s imperfection were projected as flawed but human an vulnerable, Heard’s imperfection were used to undermine and view her as completely monstrous.
Larger issue with the public opinion in favour of Depp driven by streaming channels.

Gupta: This selective consideration by the public perfectly encapsulates the risk of vox populi being given preference over rule of law.

Gupta: There was another defamation suit by Depp against the Sun newspaper, where the newspaper had named Depp as a ‘wife beater’ as opposed to Heard’s article which did not name him.

Gupta: The UK trial which was trial by judge as opposed to trial by jury. The British court after considering all evidence found that there was evidence to show Depp abused his wife.

Gupta: This despite the burden on Depp being far lower in UK Trial and there being stronger laws in the US on freedom of speech..

Gupta: In both instances, the character of Heard was attacked. The judge in UK focused on the singular issue whether Depp committed domestic abuse or not unlike jury of US.

Gupta: The dangers manifest in the jury trial, which allows public opinion to take the fore.

Gupta concludes.

Senior Advocate Siddharth Bhatnagar shares his views.

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Bhatnagar cites Greek mythology to explain the role of independent judiciary in the conflict between public opinion versus rule of law.

Bhatnagar: Our constitution which is fundamental document of governance gives more leeway than most democratic constitutions to elect representatives in the manner of making laws and amending constitution.

Bhatnagar: The emphasis of the constitution is on the citizen and not the state.
The constitution stipulates state existing for the citizen and not the citizen existing for the state.

Bhatnagar: Protection of rights through the rule of law must not only be balanced but must take precedence over any right asserted by the state through the majority opinion.

Bhatnagar: It is absolutely possible to have an absolute democracy, where the state is permitted to enforce its powers to threaten the liberty of individuals themselves. On the contrary we can never have excess on the rule of law.

Bhatnagar: Our constitution has endured difficult times solely on account on the insistence to the rule of law by our citizens and courts.

Bhatnagar: The State constitutes of the electoral representatives who could use oppressive powers which could undermine the democracy itself.
The other side is, citizens feel obliged to obey the state because of the legitimacy of the political order on which it is based,

Bhatnagar: and on basis of coercive power of the state. in this respect all modern democracies act through elected legislatures.

Bhatnagar: The framers of the constitution were careful to provide the representatives elected by the majority relatively easier opportunities to amend the constitution itself.

Bhatnagar: The fact is that elected parliament is a basic rule of majority but it authorises actions of the state. It does not make them legitimate. This is why, democracies must have methods to limit powers of majority through law and judicial processes.

Bhatnagar: Law lays emphasis on individual rights and an independent judiciary must not be accountable to the electorate for its decision.
Judicial process is characterised by abstract reasoning. Judges do not decide cases in accordance with public opinion.

Bhatnagar: In fact our flexible living constitution allows for judges to fill gaps of the constitution by applying the rule of law.

Bhatnagar: Judges have always made law because to decide disputes between parties they have to fill gaps, supply answers which cannot be found in existing sources, law which is grown through earlier decisions remains a major source.

Bhatnagar: Judges have done in so in existing framework of legal principle.

Bhatnagar: and without trespassing on the existing functions of the legislature and the parliament.

Bhatnagar: Our SC has been able to subject decision making to strict and rigorous judicial scrutiny. Therefore any thinking that elected representatives are entitled to ignore or abrogate constitutional rights…

Bhatnagar: … as an expression of the democratic will of the people is foundation of totalitarian state.

Bhatnagar: Our courts apply rule of law everyday and any instance in this regard is beyond enumeration.
When we look at the laws made by parliament or legislatures, there are numerous instances where these laws are struck down.

Bhatnagar: …partially or wholly for either violating federal distribution of powers that is to say legislative competence, or by contravening fundamental rights or any other provision of constitution

Bhatnagar: Merely because laws have the imprimatur of parliament or state legislature as elected bodies has never protected them from scrutiny.

Bhatnagar: The greatest contribution of the SC has been to preserve the constitutional rights.

Bhatnagar cites examples of judicial precedents where elected representatives have tried to take away judicial review, to abrogate fundamental rights, to place individuals above the law and to make laws without legislative competence and where SC stepped in to preserve law.

Bhatnagar: Mere fact that nation is governed by elected representatives of the people is no guarantee that constitutional rights will be respected.

Bhatnagar: Our constitution provides for just and balance. The Superior courts have duty to guard the fundamental rights and preventing infringement to rule of law. The fact that it is done by elected representatives is irrelevant.

Bhatnagar concludes.

The session has concluded.

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