Should laws be honoured in letter or in spirit? This is a vexed question which has been subjected to considerable analysis ever since the evolution of the judicial process. In today’s context, the debate has gained currency because of various attempts to interpret what constitutes sedition and freedom to dissent.
Suddenly, this eight-letter-word has come to occupy considerable mind and media space particularly after the JNU controversy when some students, including the university’s student union president, Kanhaiya Kumar, were arrested for allegedly spewing seditious slogans at an event to mark the anniversary of the execution of Afzal Guru, convicted in the 2001 attack on parliament.
In fact, sedition has become central to the ongoing political and legal discourse about what constitutes being anti-national. Opi-nions are strongly divided.
There are those on the extreme who are inclined to label anyone who stands up for the rights of citizens to speak their minds or be critical of the party in power or question its Hindutva ideology as being unpatriotic and anti-India.
There are others who swear by Voltaire’s oft-quoted dictum that in a democracy one is free to disagree with what is being said but should defend to death the right of the person to say it.
Several legal luminaries, including former judges and intellectuals, have expressed their diverse views and concerns on the issue. But the Chief Justice of the Allahabad High Co-urt, DY Chandrachud, must be commended for articulating his views on sedition as well as the judicial interpretation of laws that date back to the days of the British Raj. Coming from a sitting judge, what he said is pertinent for it is a reflection of the fact that the higher judiciary is as much seized of the issue as the rest of us.
The occasion where Justice Chandra-chud chose to go public was most appropriate and significant: a function to mark the 150th anniversary of the Alla-habad High Court. Delivering the welcome speech, the judge had this noteworthy thought to share with his audience which included President Pranab Mukherjee and Chief Justice of India TS Thakur: “Judges, in the administration of justice, ought to make wise use of judicial powers. They need to discharge their duties in a manner that promotes dialogue and protects dissent. This is because dialogue and dissent are essential for any democracy to survive and function.”
Justice Chandrachud quoted from Amar-tya Sen’s book Idea of Justice to buttress his point that it is important to differentiate bet-ween law and justice. The Chief Justice pointed out that the Nobel Laureate had noted that a distinction must be made between niti (letter of the law) and nyaya (the enforcement of the law in a just manner). This, Justice Chan-drachud noted, must be borne in mind while dispensing justice and interpreting laws.
The reason why the judge invoked Amartya Sen was because the latter has provided us a telling example in his book to illustrate the distinction between niti and nyaya. To quote: “Ferdinand I, the Holy Roman emperor, famously claimed in the sixteenth century: ‘Fiat justitia, et periat mundus’ which can be translated as ‘Let justice be done, though the world may perish.’ This severe maxim could figure as niti—a very austere niti—that is advocated by some (indeed, Emperor Ferdinand did just that), but it would be hard to accommodate a total catastrophe as an example of a ‘just’ world, when we understand justice in the broader sense of nyaya. If indeed the world does perish, there would be nothing much to celebrate in the accomplishment, even though the stern niti, leading to this extreme result could conceivably be defended with very sophisticated arguments of different kinds.”
Justice Chandrachud also touched upon antiquated laws which must be interpreted with nyaya in mind. “Law tends to follow precedents. But it must be kept in mind that administration of justice also necessarily in-volves interpretation of laws that may have been laid down ages ago, in accordance with contemporary needs and challenges,” he said.
The judge obviously had two laws that we-re in the news for the wrong reasons in mi-nd—one on sedition (Section 124-A) dating back to 1870 which was drafted by the British to keep the leaders of the Freedom Struggle in check and Section 377 of 1860 that criminalizes homosexuality.
The sub-text of what he said was that such laws have to be seen in the contemporary milieu for justice to be delivered.
It is heartening and refreshing to see a senior judge like Justice Chandrachud standing up for the preservation of democratic values, espousing liberal values and advocating a holistic and pragmatic interpretation of our laws. We are lucky that there are others like him–within and outside the judiciary—who believe that nyaya must prevail over niti.