Chief Justice of India Bhushan R Gavai has given a word of caution to the courts, saying that they should exercise the power of judicial review only in exceptional or rare cases, wherein the statute was either violative of the basic structure of the Constitution or in direct conflict with any fundamental right of the Constitution.
Speaking during an event organised by Oxford Union and Advocate-on-Record Tanvi Dubey in England on Tuesday, the CJI said the courts had the power to exercise judicial review and have done so in cases in which the statute was patently arbitrary and discriminatory.
Noting that judicial activism was here to stay and would play a major role in India, the CJI said the same should not devolve into judicial terrorism. When the legislature or the executive failed in their duties to safeguard the rights of the citizens, the judiciary was bound to step in, he noted.
Addressing the gathering on ‘From Representation to Realization: Embodying the Constitution’s Promise,’ the CJI said that at times, the judiciary may attempt to exceed the limits and enter into an area, where it should not enter in normal circumstances.
He said decades ago, millions of Indians were referred to as ‘untouchables’. Thanks to the Constitution of India, an individual from the same group was today addressing the Oxford Union, while holding the country’s highest judicial office.
The Constitution of India carried within it a heartbeat of those who were never meant to be heard, and the vision of a country where equality was not just promised, but pursued. This forced the State not only to protect rights, but also actively affirm, uplift, and repair, he added.
Quoting Dr BR Ambedkar, the father of the Indian Constitution, the CJI said democracy could not survive in an unequal society till power was divided among communities and institutions.
The mechanism included redistributing power to the legislature, executive and judiciary, along with social groups that had been denied a share for centuries.
Referring to scholar Gayatri Chakravorty Spivak’s essay, ‘Can the Subaltern Speak?,’ the CJI said that subaltern could now speak, and they have been speaking all along. The question was no longer whether they could speak, but whether society was truly listening.
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