Home / Opinion / Views /  The republic’s strength is a steady Constitution

This Republic Day, as on every, we the people must devote thought to the Constitution of India. Especially so in the context of a major concern of the freedom struggle that gave it birth: justice. It is the Preamble’s first mention of what we have collectively resolved to secure for all citizens. The context this year, as it happens, is wracked by a standoff between the judiciary and government over the latter’s demand of a formal say in appointing judges, done currently by a collegium of the former headed by the Chief Justice of India. Unfortunate though it is for individual names to be dragged into the fray, this has already happened. Willy-nilly, the candidacy of senior advocate Saurabh Kirpal has become a talking point. Proposed for the post of a Delhi high court judge by the collegium in 2021, his name reportedly ran into Central qualms over his sexual orientation, with heteronormative queries raised over potential biases on its account. Only recently did the country legalize consensual same-sex intimacy for adults, after the Supreme Court struck down an old law and endorsed the need for justice to move with the times. For the spirit of that reform to be upheld at every level, sexuality must not disqualify anyone. It’s plainly unjust.

Like the Indian Penal Code, whose Section 377 on “unnatural offences" was a colonial relic of blinkered times, our Constitution is also a ‘living document’, open to amendment as society evolves and opens our eyes further. Its text never claimed perfection and has had plenty of tweaks since 26 January 1950. This lends weight to the argument that what it says should be a closer function of the popular will, as voiced by leaders elected to the legislature, a point that the ruling BJP dispensation has been making lately. On statutory reforms that spell progress, sure. But what about judge selection? Like a work of meta-fiction, this rakes up a self-referential complexity. Unlike an AI chatbot that uses algorithms to spout a single answer, courts often issue rulings with views that vary within the scope of the same statute. An outcome can pivot on the vote of a bench, a device that allows a judicial balance which could shift over time on the same matter, as we saw happen on LGBTQI+ rights. As a lawyer and up-close observer, Kirpal is reported to have referred at a literature festival to gaps of perspective within court benches. These points of view might be conservative or liberal, right or left and pro- or anti-Centre, in this reckoning, but since judges do have space to diverge on issues, that is not to be taken as a sign of an ideological or party bent. On the symbiosis of law and society, Kirpal was cited thus: “Law reflects what society is because, after all, you can’t stray too much from what people think, need and desire."

What’s considered socially reasonable, or even common sense, can get transformed in dramatic ways; it would be odd of a democracy not to revise rules for it. Yet, as an electoral majority is not a consensus, all tweaks must be kept within the basic frame of the Constitution. Any change must cohere with core promises of justice, liberty, equality and fraternity, which form the basis of Indian integrity, unity and stability. And if any proposal is judged likely to impact these unifiers, it should be put to the test of what’ll keep us bonded as citizens. This wisdom had guided our Constituent Assembly over seven decades ago. Today, it explains our need for constraints on political authority. A steady republic, after all, is a strong one.

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