The Supreme Court has tilted more towards “idealism” in the recent years, compared to “realism” in the past, due to the socio-political and economic changes taking place in the country, a senior judge of the apex court said today.
“The Supreme Court, in the triple talaq judgment, did perhaps what it could not do in the Shah Bano case,” he said.
The injustices today were not borne out of poverty or illiteracy alone, but due to different identities, diverse opinions and aspirations for autonomy, Justice Gogoi said.
He maintained that the apex court’s “character and functioning” would have to be perceived in the light of the prevailing circumstances.
Justice Gogoi said this as a response to arguments in certain quarters that “the Supreme Court is venturing into creating a judicial legislature or that it is entering into the domain traditionally reserved for the executive and legislature”.
He was speaking on the topic of “Constitutional Realism and Constitutional Idealism: Is the Supreme Court on the Cusp of Evolution?” as part of the 13th Justice P D Desai Memorial Lecture.
“We are realising that the injustices today are not borne out of poverty and illiteracy alone. They are borne out of different identities, diverse opinions, aspirations for autonomy and the desire to be a free thinker.
“However good or bad it may appear to be, we can’t help it, this is the new order,” the apex court judge said.
Stating that the Supreme Court’s stance as regards strengthening civil liberties showed a tilt towards “idealism”, he said, “The court seems to have taken a meaningful leap towards the ideal idea of India, if not towards the new idea of India.”
Through this shift, the apex court was gradually “enriching the culture of constitutionalism”, Justice Gogoi added.
Through its recent judgements, the apex court had been “beaming a new light into the promises of justice, liberty, equality and fraternity that we, the people of India, have made to one another”, he said, citing the triple talaq ruling as an example.
“I don’t know why the media and the intelligentsia were quick to draw a parallel between Shayara Bano (triple talaq) and Shah Bano (right to alimony). It is my earnest view that the Supreme Court, in the triple talaq judgment, did perhaps what it could not do in the Shah Bano case.
“It extended democratic ideals into a very intimate private sphere of two autonomous individuals. The Shah Bano ruling (1985) began with these words: ‘This appeal does not involve any question of constitutional importance’,” Justice Gogoi said.
The apex court judge added that both the landmark cases were treated differently.
“In the triple talaq judgment, the court tested the practice of unilateral talaq on the touchstone of this very Constitution,” he said.
In the Shah Bano case, the court “perhaps did not deem the issue to be so much an issue of gender equality.
“In the Shayara Bano case, it left no stones unturned when it held triple talaq to be inequitable in terms of Article 14 (dealing with equality),” Justice Gogoi noted.
“Without an inkling of doubt, this piece of law will be a sterling addition to Indian legal philosophy on gender justice,” he added.
Highlighting the reasons for the change in the apex court’s approach in dealing with issues of public interest, Justice Gogoi said the country had witnessed a socio-political and economic transformation over the years.
“India is transforming from socialism to acquire a new identity. The rise of the capitalist class has made India extremely susceptible to corruption and the consequent criminalisation of politics and economy and aberrations in good governance,” he added.
The “watchdog vacuum” created due to these changes was being filled by the judiciary, Justice Gogoi said.