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The Supreme Court’s loss

The Supreme Court’s loss
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First Published: Wed, Feb 17 2010. 08 39 PM IST
The iconic image of the goddess of justice shows her holding scales, her eyes covered. She is guided by evidence, and adjudicates as per the norms, rules, and laws that society has codified.
Often, this icon is on top of the courthouse, unreachable, as though delivering a verdict from the skies. Courtroom decorum, traditions and rituals perpetuate the theatre to inspire awe, obedience, and sometimes fear.
For the one untutored in the rituals, and unused to the arcane language of the procedures, the experience can be forbidding. Justice isn’t cheap. The barriers can daunt those at the margins: the poor, the disabled, the minorities, and those who don’t fit societal norms. Such individuals get excluded.
But that fine document—the Indian Constitution—is meant to be inclusive. It requires the state and its organs not to discriminate. When politicians fail to govern, the courts are supposed to step in, setting the wrongs right. Many judges have widened the doors of the courts, making them more accessible, respecting the dignity of all individuals. One such champion retired last week.
Ajit Prakash Shah’s departure is a huge loss not just to the judiciary. It isn’t often that a judge who does not get appointed to the Supreme Court leaves behind such a strong legacy of rulings that have safeguarded individual rights. But throughout his career, in the high courts of Bombay, Madras and then Delhi, justice Shah upheld rights, protected the vulnerable, and delivered blows to inbuilt discrimination in Indian society. He could not have done it alone. But he led.
He is a constitutionalist in the nice sense of the term: He did not use the Constitution as a shield to keep society stuck in the values of 1950s. He interpreted the liberal philosophy and intent of the Constitution, and through his rulings, pushed the government to remove discrimination. In The Idea of Justice, Nobel laureate Amartya Sen refers to the philosophical distinction between the notion of institutional justice and the actual realization of justice. Sanskrit has two words for justice, he notes in the book: nyaya, certainly, but also niti. Nyaya is the delivery of justice, niti, the principle of justice. “The idea of justice demands comparisons of actual lives that people can lead, rather than a remote search for ideal institutions. That is what makes the idea of justice relevant as well as exciting in practical reasoning,” Sen writes. And that’s what justice Shah did.
Indian laws framed in the Victorian era had not only outlawed, but also criminalized consensual gay sex. That made it harder for the state to combat the human immunodeficiency virus. It also allowed law enforcement officials to harass gays, often cruelly. Indian “traditionalists” argued that there was no need to repeal the law. Homosexuality, they argued, was against public morality. But justices Shah and Muralidhar reasoned that since public morality changes over time, constitutional morality must prevail. Fundamental rights require absolute remedies, not relative assurances. In an interview earlier this week, Shah pointed out how the practice of sati and untouchability were once sanctioned by public morality, but had no place in modern India. And so, avoiding the fruitless discussion on traditions, Shah and Muralidhar focused on discrimination, and decriminalized homosexuality. Their reasoning remains impeccable; among those queuing up to argue against it before the Supreme Court are those guided by religion, and not the Constitution.
There was much more: Shah dismissed the arbitrary quotas restricting the number of people who could pull rickshaws. He forced the government to build shelters for those who live on the streets, to protect them from extreme cold. He required transport authorities to make buses disabled-friendly. He upheld Muslim women’s rights to maintenance. He forced political parties that closed down cities in illegal bandhs by fining them, to compensate for the inconvenience caused to other citizens. He required state schools to hire specialist teachers, and included dyslexic children in regular classes, instead of sending them to ghettos. He refused to recognize patent claims of companies that went beyond what India had agreed at the World Trade Organization. He prevented authorities from removing blind hawkers from railway stations. He compelled Doordarshan to show Anand Patwardhan’s films that raised troubling questions about communalism, and struck down the censor board’s decision not to award a certificate to a film about communal violence in Gujarat. He also brought down exalted judges a notch or two, ruling that the Right to Information Act covers the Supreme Court Chief Justice, striking a major blow for transparency and accountability.
Shah gave life to the Constitution, using its philosophy to empower Indians who faced discrimination and whose freedoms were denied because they had disabilities, had less money, loved differently, were forced to obey restrictive rules set by the powerful, and who wanted to speak freely. That he wasn’t elevated to the Supreme Court is India’s loss.
Salil Tripathi is a writer based in London. Your comments are welcome at salil@livemint.com
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First Published: Wed, Feb 17 2010. 08 39 PM IST