Context

• As we celebrate 75 years of the Constitution of India, it is imperative to reflect not just on its achievements but also on the challenges to its core values.
• The Constitution, envisioned by its framers as a beacon of justice, equality, and liberty, finds itself mired in an ethical and moral crisis.
• At 75, it is important to examine historical and contemporary dimensions of the struggle for personal liberty, with a focus on the reinvigoration of dissent as a constitutional ethic and the role of the judiciary in safeguarding justice.

The Role of Dissent in Constitutional Ethics

• The Pillar of Democracy
  • Dissent forms the lifeblood of a vibrant democracy, embodying the spirit of free expression and critique that is essential for societal progress.
  • Within the constitutional framework of India, dissent is not merely a right but a fundamental ethic that safeguards the balance between state power and individual freedoms.
  • The Supreme Court’s evolving stance on dissent, as seen in key judgments, underscores its critical role in upholding the moral and ethical spirit of the Constitution.
• The Foundational Challenge: A.K. Gopalan vs State of Madras
  • A defining moment in the jurisprudence of dissent was the case of A.K. Gopalan vs State of Madras (1950), which tested the nascent Constitution's commitment to personal liberty.
  • The majority opinion in the case adopted a compartmentalized interpretation of fundamental rights, allowing preventive detention to stand without rigorous scrutiny.
  • However, Justice S. Fazl Ali's dissenting opinion offered a broader, more integrated understanding of liberty, emphasising its inseparability from justice and dignity.
  • While his views were not adopted at the time, they laid the groundwork for future interpretations that sought to reconcile the Constitution’s technical provisions with its overarching ethical values.
• The Revival of Dissent: Puttaswamy vs Union of India
  • The significance of dissent was reinstated decades later in Puttaswamy vs Union of India (2017), a landmark judgment that affirmed the fundamental right to privacy.
  • By referencing Justice Fazl Ali's dissent, the Supreme Court acknowledged the flaws in earlier majority judgments that had curtailed liberty.
  • This recognition of dissent as a constitutional ethic marked a shift toward a more expansive understanding of justice, one that places personal liberty and human dignity at the centre of constitutional interpretation.
• Dissent as a Shield Against State Overreach
  • Dissent, as a constitutional value, is vital not only for challenging state overreach but also for enriching public discourse.
  • It acts as a counterweight to the centralisation of power, ensuring that diverse perspectives are heard and respected.
  • This principle resonates with B.R. Ambedkar’s vision of the Constitution as a dynamic document capable of holding the country together by accommodating differing views and fostering a culture of dialogue.
• Beyond Judicial Rulings
  • However, the role of dissent in constitutional ethics extends beyond judicial pronouncements.
  • It requires an active commitment from all branches of government and civil society to protect and promote the right to dissent.
  • The Preamble to the Constitution, with its emphasis on justice, liberty, equality, and fraternity, provides a moral compass for navigating conflicts and ensuring that dissent is not criminalised or suppressed.

The Paradox of Dissent in Contemporary India

• Despite the judiciary’s recognition of dissent as a constitutional value, its criminalisation has intensified in recent years.
• Preventive detention, arbitrary arrests, and the denial of fair trials have become tools to suppress dissent.
• The experiences of activists like Umar Khalid, Sharjeel Imam, and Gulfisha Fatima jailed for their resistance to the Citizenship (Amendment) Act (CAA).
• It echoes the struggles of A.K. Gopalan, who faced imprisonment and re-arrest under colonial and post-independence laws.
• The irony lies in the fact that laws originally designed to uphold colonial rule have been repurposed to stifle dissent in independent India.
• The notion that ‘the process has become the punishment’ aptly describes the plight of contemporary dissenters.

Lessons from the Journey of Constitutional Governance in India: The Role of Judiciary

• The Ethical Responsibility of Courts
  • The judiciary, as the guardian of constitutional values, has an ethical responsibility to protect personal liberty and dissent.
  • While the Supreme Court has, in some instances, demonstrated a commitment to these principles—such as in the Puttaswamy judgment, it has often fallen short in addressing systemic issues.
  • The reluctance to grant bail to dissenters, the deferment of crucial hearings, and the endorsement of broadly worded anti-terror laws contribute to a culture of impunity.
  • This underscores the necessity for “creative constitutionalism,” a term coined by Professor Upendra Baxi, which advocates for an imaginative and justice-oriented interpretation of constitutional provisions.
• Avoiding Historical Repetition
  • The failure to learn from history risks repeating its mistakes.
  • K. G. Kannabiran’s observation that the Gopalan judgment represented an “Indian-made foreign judgment” is a sobering reminder of how colonial laws and mindsets have persisted in post-independence India.
  • Seventy-five years after the adoption of the Constitution, the judiciary has an opportunity to correct this legacy by ensuring that laws are interpreted and applied in ways that further justice rather than perpetuate oppression.
  • The Constitution must not be allowed to become a tool for state control; instead, it must remain a beacon of hope for those who challenge injustice.
• Upholding Justice as the Constitution’s Ultimate Goal
  • The essence of creative constitutionalism lies in its commitment to justice as the ultimate goal of the Constitution.
  • Ambedkar envisioned the Constitution as a living document capable of adapting to the needs of a dynamic society.
  • To honour this vision, courts must actively engage with the ethical dimensions of constitutional interpretation, prioritising human dignity and liberty over procedural rigidity.
  • By doing so, the judiciary can ensure that the Constitution remains a transformative force that empowers citizens and safeguards democracy.

The Path Forward: Creative Constitutionalism

• Creative constitutionalism calls for a departure from rigid proceduralism and an embrace of judicial innovation to uphold the ethical spirit of the Constitution.
• This involves interpreting fundamental rights expansively, prioritising personal liberty, and ensuring that laws and state actions align with constitutional values.
• Courts must actively address the misuse of preventive detention laws and anti-terror statutes, ensuring that these measures are not used to stifle dissent or target marginalised communities.
• Additionally, the judiciary must develop a culture of urgency in cases involving personal liberty, recognizing that delayed justice often amounts to denied justice.

Conclusion

• The Constitution of India represents a vision of justice, equality, and liberty that transcends generations.
• However, its promise remains unfulfilled as long as dissent is criminalised and personal liberty is compromised.
• The struggles of past and present dissenters serve as a stark reminder of the distance yet to be traversed.
• By embracing creative constitutionalism and prioritising the dignity and liberty of individuals, India can move closer to realising the transformative potential of its Constitution.