Anti-terror laws should not be misused to quell dissent, says Justice DY Chandrachud

New Delhi: The criminal law, including the anti-terror legislation, should not be misused for quelling dissent or harassment of citizens, Supreme Court judge Justice DY Chandrachud has said while underlining the role of the apex court in protecting fundamental rights in challenging times. Observing that the Indian Supreme Court plays the role of a counter-majoritarian institution, Justice Chandrachud said it is the duty of the top court to protect the rights of socio-economic minorities. The Supreme Court has to act in furtherance of its role as sentinel on the qui vive (watchful guardian) and respond to the call of Constitutional conscience and it is this role that prompts it to address the challenges of the 21st century, ranging from the pandemic to the rise of intolerance, features which we find across the world, he said, adding that some termed interventions as judicial activism or judicial overreach. Justice Chandrachud made these comments on Monday while speaking on the “Role of the Supreme Court in protecting fundamental rights in challenging times” at a conference hosted by the American Bar Association with the Society of Indian Law Firms and Chartered Institute of Arbitrators. He referred to the apex court’s orders on decongestion of jails during the COVID pandemic and said that while it is important that prisons are de-congested because they are highly susceptible to becoming hotspots for the virus, but it is equally important to examine why they are congested in the first place. Referring to his judgement in the Arnab Goswami case, Justice Chandrachud said: “The criminal law, including anti-terror legislation should not be misused for quelling dissent or for the harassment of citizens.” “As I noted in Arnab Goswami vs The State of Maharashtra & Ors, ‘our courts must ensure that they continue to remain the first line of defense against the deprivation of the liberty of citizens. Deprivation of liberty even for a single day is one too many. We must always be mindful of the deeper systemic implications of our decisions,” he said. He said the role of the Indian Supreme Court and its involvement in aspects affecting the daily lives of the population of India cannot be understated. While being acutely aware of this responsibility, the judges of the Supreme Court of India are careful to maintaining the separation of powers. Many of its interventions have changed the course of Indian history - be it in protecting civil and political liberties which cast a negative obligation on the State or in directing the State to implement socio-economic rights as affirmative obligations under the Constitution, he said. As the guardian of the Constitution, it has to put a break where executive or legislative actions infringe fundamental human rights. Even in the context of the separation of powers, the scheme of checks and balances through supervision results in a certain degree of interference by one branch into the functioning of the other. Instead of imagining separate branches of government isolated and compartmentalised by walls between them, we should view their working taking effect in a complex interactive, interdependent and interconnected setting where the branches take account of and coordinate with the actions of the other, he said. Justice Chandrachud said the top court has used various methods in holding the executive and legislature accountable, whether it is by  striking down a law and ruling on its unconstitutionality, or by restraining to intervene in certain matters of policy or through its deliberative approach of making the executive and legislature aware of the constitutional implications of the decisions at hand.