Who so Dynamic and so youthful at this uh juncture of his life to be here at Georgetown in Washington sitting at the same Podium as Justice Brier who’s been an inspiration not just for American jurisprudents but for Indians as well just a little bit about U chief justice
Chandu um he hails from a family which kind of set records I think just on a regular basis so his father was the longest serving Chief Justice of India for almost seven years and um Justice chief justice chandur himself is going to be setting a record for being the longest serving constitutional Court
Justice in India he was um uh you know he was he had a short stin as an additional solicitor general of India in 1998 and soon thereafter he was sworn as a judge of the Bombay high court in March 2000 he was handpicked to be the Chief
Justice of alabad high court in October 2013 which is one of our oldest and toughest High courts of the country so it’s um actually his Acumen as an administrator as well as a Judicial mind that it was no surprise that he got got elevated to the Supreme Court soon so he
Took oath as Chief Justice of India on 9th November 2022 and he will remain in harness till one day before his 65th birthday which falls on November 11 2024 now this is a person who has experienced many diverse environments his family hails from a smaller town in um
Central India but now he’s gone on to do his high school education in Bombay and uh New Delhi and is also a product of the prestigious Delhi University and Howard law school his scholarship has earned him llm and sjd degrees from Harvard it’s not surprising that he’s a favorite guest speaker amongst
All platforms that we know about he has been in invited to speak at various universities around the globe including the Harvard Law School the Yale law school the Australian National University and the University of wiwat ran South Africa besides Indian law schools well it’s said that it’s the
People who make the institution and it is truer for him than anyone else his Progressive views are reflected in his judgments it’s no coincidence that during his tenure for the last eight years that the Indian Supreme Court has delivered a Spate of progressive judgments the celebrated Judgment of
Justice putas Swami versus Union of India firmly crystallized the right to privacy as a fundamental right in the Indian constitution he has sat on benches that decriminalized consensual homosexual relationships and adultery and was seminal in throwing open the sabala temple to menting women devotees who were tradition Ally prohibited from worshiping at the
Temple well the Indian Supreme Court judges deal with an average of about 150 cases per week this is not their entire Year’s docket it’s a week’s docket for them with this judicial workload it is very remarkable that the Chief Justice retains a high degree of sensitivity and empathy for human disabilities sorrows and
Marginalization his judgments have helped Indian women realize their full potential leftenant Colonel nitia versus Union of India is a significant judgment because it allowed women to be permanently commissioned in the armed forces something that was previously unimaginable I must let you into a very small Open Secret like most Indians our
Chief justice is a real it geek as the chairperson of the E Committee of the Supreme Court of India he is rapidly unfolding a dig digital transformation digital access to litigants and lawyers is now available in the network of about 22,000 courts across the country today A
Litigant in the deepest of the Interiors a mensura lady a nursing mother or a handicapped lawyer can easily access the court without navigating entry barriers while his personal views on gender rights are clearly known the ruling on the same-sex marriage delivered a day before he embarked on his journey to
Georgetown is clear is a clear reflection of the unenviable task of steering decisions that would meet the aspirations of people we now have a verdict with many opinions which in his own words and I quote has a degree of agreement and there is a degree of
Disagreement on how far one has to go I welcome our chief justice to Georgetown law here in Washington I also want to introduce to you the person who has made the meeting of these two Stellar guests uh possible at this stage and that’s uh Dean trainer the force of Georgetown law
He’s is the Executive Vice President of Georgetown University and the dean of the Law Center he holds the law Center’s Paul Regus Dean leadership chair bill is named as one of the 10 most cited legal history scholars in the United States by the University of Chicago law schools
Brian leiter and of late he seems to have acquired a kind of a reputation of having his writings quoted in US Supreme Court decisions Georgetown law has undergone a rapid transition from 20 2010 when he agreed to join as the dean his vision and Leadership has been so
Tremendous that he was reappointed to serve a third term beginning July 1st 2020 Bill’s commitment to academic Excellence has made Georgetown law hire 69 new tenure or tenure track faculty members tripled the number of experiential offerings for students in its clinical externship and practices programs and more than doubled the
Financial aid now Georgetown law has also experienced its most successful era of fundraising culminating in nearly 80 million in giving in the last fiscal year in 2012 he was recognized by the National Law Journal as a champion because of his work to uphold the profession’s core values and the
National jurist magazine has named his named him one of the most influential people in legal education four times bill was elected into the American Academy of Arts and Sciences for Law and education as part of its 2020 class of new members most recently he was selected for the inaugural honorable
Robert a catsman award for academic Excellence by Burton Awards like our chief justice Dean trainer has the rare mix of being an astute administrator and being being a very distinguished and acknowledged scholar ww Norton will soon publish uh Bill’s upcoming book fathers of the Constitution Triumph tragedy and
The creation of the American Republic I now hand over to Bill to take over this well thanks very much via for your very kind words and I I have to say I have been looking forward to this event for so long um you know Viva uh who’s one of
Our alums had had the vision of of strengthening the ties between Georgetown and the US Supreme Court and the Indian Supreme Court and we’ve had a series of conversations uh over the past few years um Justice Brier had a conversation with Chief Justice Ramina last year uh and I
Also had the privilege in 2017 of of meeting the chief justice uh in a meeting in India which was set up by Viva so it’s really it’s great and uh I also want to thank you know Justice Brier for being here he’s teaching tomorrow he rearranged his schedule so
He could be here and I’m really just so grateful uh that we’re gonna have this conversation um you know obviously he doesn’t need an introduction but uh so I’m not gonna um but I would just kind of two things that I’d highlight before I get
Into the substance you know his a lot of his scholarship while he’s on the court have been on subjects that we’re going to be touching on uh so in particular uh his book active Liberty which is has the vision that the Constitutional principal goal is to encourage and support civic
Participation I think we’re going to be hitting on a lot of those themes and also uh the court in the world which is about kind of Reliance or or invocation of other court other nations constitutional jurist prudence and Supreme Court jurist Prudence so I think those are themes that we’ll uh
Inevitably be talking about just again chief justice justice Brier so so delighted you’re here so looking for this conversation I’d like a round of applause for both of them so um actually gonna start on a kind of a biographical question so chief justice uh you studied at
Harvard um and you told me that you audited Justice Brier’s course do you want to have any Reflections on how any of this has influenced your Juris Oh I’m I think we that’s your that’s your microphone uh my years at Harvard Law School were not just informative but formative uh the first thing that I learned at at at the law school was the emphasis is not on as much on teaching law as on thinking about the law and I
Think that has been the critical standout feature that I picked up from the law school uh those were the emerging years of the critical legal studies movement that really now has branched out into areas like critical race Theory but I was really at that point when the critical legal studies movement
Was kicking off in our law schools and particularly in structuring my own understanding of Rights jurist Prudence my years at Harvard were uh tremendously uh life-changing uh when I was doing my PhD the sjd at the law school uh I wrote an affirmative action and one of the areas
Which I researched while sitting in the WID library was uh philosophical issues in affirmative action policies I think this has left an indelible imprint in my own life I guess the benefit of education is something which you realize is in layers as you progress through life so I think the benefit which I
Received when I was a student is very different from when I became a lawyer and I would appear for bonded workers for the HIV positive segment of our population for religious and linguistic minorities and then coming to my years as a judge and I’ve been a judge for
Almost 23 years now in the system I think it has in very critical ways uh changed the way I think and write about the law uh for inance ideas such as what do you mean by Merit when you talk of affirmative action policies you Define merit in terms of
Raw scores in entrance examinations to law schools or medical schools or do you define Merit in a more broadly inclusive sense as putting those who have been marginalized in our societies uh in Frameworks of decision-making responsibility to make our society more inclusive more diverse more plural I think these are are really
Ideas which have deeply influenced me or in in in terms of the work which we have done in the Supreme Court on gender while talking about intersectional discrimination that women in particular pH uh so some of these ideas continue to shape the work which I uh continue to do
And I think uh in so many ways my interface at the law school has been life-changing uh just Bri’s lectures were simply amazing and and the amazing thing is despite having gone through my course he’s made a success of himself and uh really uh it was not just
An unfolding of administrative law but the unfolding of administrative law and it’s very deep connect with constitutional law because this is something which we have witnesses in India as well uh the the growing constitutionalization of the principles of administrative law by grounding those principles on fairness on reasonableness on doctrines of
Proportionality uh so there’s so much that really uh this education is meant to me actually let me just ask you so separate question uh so you studied at Oxford before you started law school Justice par did that did that influence your jurist Prudence at all my Juris
Prudence most of the time at Oxford you get up in the morning as late as possible uh you’d find somebody who is having coffee or tea or friends in his room you’d go over there and have a little discussion with your friends probably you go to lunch in the
Afternoon you’d go up and walk along the river and my greatest achievement you had to read your essay for the week to your tutor and a friend of mine figured out that I tried for a while but they weren’t stupid and they figured out what
Was going on I would just have a blank piece of paper but I I like dog I me it it was great it was great but I didn’t study law there I studied PP I said philosophy politics and economics and and uh it it stood me in good stead
Uh particularly the the economics and the philosophy uh yeah it was good I liked it it sounds fun it was it was I said that I wrote to my parents in those days I said I think for the two years I was here I I enjoyed it I
Well I didn’t go into detail but there we are so um so now back to the Chief Justice so last week a major decision on same-sex marriage by the Indian Supreme Court would you talk a little bit about that and about your opinion sure uh well in
2018 we reversed a judgment of the Indian Supreme Court uh and in 2018 by our decision we decriminalized uh same sex consensual relations between adults of the same uh of the same gender or sex and uh that was important in itself uh but that was not the end of
The uh evolution of lgbtq Rights in in in India and we have this clutch of petitions which came up before us for hearing where same-sex couples uh chose to espouse their right to marry under the Indian constitution now we have a legislation in India called the special Marriage Act of
1955 and the special Marriage Act was basically enacted by Parliament to allow couples heterosexual couples belonging to uh different faiths to get married under a secular law because prior to that legislation there was no other choice except for one of the couples to uh one of the two to
Convert to the other religion but this gave you a secular option where you could continue with your faith and yet get married under the under the law law and the law obviously spoke about heterosexual couples man and woman it had different degrees of prohibited relationships for men a separate set of
Relationships for women but it doesn’t end there because marriage itself is governed by custom and then codified into statute so you have statutes governing the relations uh marital relations between people of different religious communities in India whether they are Hindus or they are Muslims or they Christians
Zor asrian uh and other religious groups so one of the key questions was does the court have the jurisdiction to essentially get into this domain and to mandate that there is a right to marry under the Indian constitution by a unanimous verdict of all the five judges in the bench we came
To the conclusion that while we have progressed a great deal in terms of decriminalizing ing homosexuality and recognizing uh people belonging to the queer Community as uh equal participants in our society uh legislating on the right to marry is something which Falls within the domain of Parliament and we couldn’t by
Judicial fat lay down a very complex enter into a very complex area which is not just confined to marriage but which goes into other areas like marriage adoption succession inheritance tax uh therefore we said that well it’s time for Parliament to act uh apart from that
Uh that’s where I got into a minority I said though we cannot therefore entrench into the domain of parliament nonetheless there was sufficient there were sufficient foundational principles in our constitution to allow for recognition of same-sex unions in terms of civil unions and we grounded that in provisions of our constitution dealing
With the right of Association the right to life and personal Liberty the right to free speech and expression and the right to conscience interestingly the right to conscience is a part of the same right under which the right to freedom of religion is recognized we held that conscious and some conscience
Is something much broader than religion it incorporates your right to follow your own faith but conscience is incredibly vaster than merely uh your right to freedom of religion uh three of my colleagues another colleague joined me in this but three of my colleagues felt that uh to recognize a
Right of forming unions was again beyond the judicial domain and that it must be left to Parliament so on the uh on on the fundamental issue as to whether same-sex couple should have the right to form abiding unions and cohabitational relationships uh three of my colleagues though they recognize that they do have
The right they said we cannot Elevate this to a constitutional right the other area in which we were again I was in a majority in a minority of two was whether same-sex couples have the right to adopt I said that well same-sex couples queer couples have the right to
Adopt a child because under Indian law two single individuals can adopt a man can adopt a child uh a woman can adopt a child so I said if they are together there’s no reason to deny them the right to adopt a child merely because they in a queer
Relationships there again three of my colleagues defered they felt that the absence of a recognition of the right to adopt to queer unions is discriminatory but that’s something which has to be addressed by Parliament and the delegate of parliament while framing uh subordinate legislation but that the
Court should not go as far as to do that so on the broader aspect there was unanimity but on the right to form unions and adoptions I was in a minority of two as against three of my colleagues so and just to put it in context so
Think we were talking before in the history of the Indian Supreme Court there have only been 13 cases in which the chief justice has been in the minority is that what you told me yes that’s right uh generally speaking Chief justices have not been in a minority but
Uh there are 13 cases significant 13 cases in our history where chief justice have been in a minority and I do believe it’s sometimes a vote of conscience and a vote of the Constitution and I I stand by what I said that’s very good so Justice bre the path to Ober
Gell uh when I was in law school obber gell would have I think it was would not have been conceivable uh at least to me um and actually my my roommate wrote a paper essentially arguing that there was a constitutional right to same-sex marriage and he went to a lot of Faculty
Members and they said you know this will never happen and yet it did how did it happen five people thought it was there and four did not I think but the interesting question is is uh right for homosexual marriage is not I don’t find it written in the
Constitution the words that are there that uh were significant are no State shall deprive any person of equal protection of the law now think of those words for a moment and if you think of the words see we’re now in a a situ I’m just writing something
About using words in the Constitution or in a statute and as you know there there there are many more people now than when I was in law school that think that what court should do is look at those words and then stop or look at what the words
Meant originally to the people who wrote them and then sto I don’t M well Nino and I used to debate that and uh I would say I’ve just written I will be out in a while uh I don’t know how much to go into this but the the uh reading the
Constitution why I chose pragmatism not textualism and of course the real title of the book should be while I’m right and everybody else is wrong but um so you have a long explanation but the short explanation and it’s more we taught this last week it was the equal protection of the
Law what’s that about because a lot of historical Scholars think that the equal protection cases which you probably know many of them versus Board of Education for example really should have been under the privileges and immunities clause that would guarantee uh everyone being treated the same equal protection has this word
Protection and it seems to mean that you will apply the law of the same way to every person and once you see that you see why from a purely linguistic point of view Brown had a hard time coming along because as soon as they said equal protection of the law means similar laws
Then you’re back in plac evv Ferguson because they said sure you’re going to have the same law just has to be equal treatment I mean of course I mean I’m old enough to remember that anyone who saw the pictures in Life Magazine of a black person School in a
White person’s school if they thought they were equal they would have to be out of their minds more equal than flying but that wasn’t a sort of legal issue okay so Brown is then interpreted to mean you can’t separate the races no one’s school for black no one’s school
For white and why not why not if the schools really were equal didn’t have to worry about that because they really weren’t equal but but suppose they had been now now we’re getting into this more deeply and you say well if they’re really equal uh that must mean h that
Doesn’t work so what brown really means is h no separation of races and why was there not a big fuss about that of course there was a big fuss in the South but why because World War II had passed because people understood finally what was going on and
When they looked and saw what was going on they said no we don’t like it that was the era of Martin Luther King that was the era of uh uh the us boycott that was the era of the Freedom Writers going to the South and it took 10 years 15
Years before we really got rid of racial segregation now why do I go into all that because the time by the time the court got towards the end of that 15-year period it began to say things such as no we’re not going to have people treat it differently because of
Race or religion or or or and because that’s what that equal protection Clause means and we’re going to try to make that enforcable we just spent 15 years trying to get it enforceable my God it’s been terrible but we have it or we don’t quite have it I don’t know well in the
Law we sort of have it and anyway that’s a theory all right have you followed it that far that confusing uh uh explanation I’ve just given because it’s relevant to OBG overg along the way the court wrote an opinion roughly on the question but suppose a person has a religious
Belief that you should discriminate against minorities because the Constitution does protect freedom of religion and an opinion of the Court said if the reason a person has a religious belief not to do what the law says well that doesn’t count if the religious belief itself is not based on something
That will hurt themselves or hurt other people now that’s important because you have coming up in oberfell at least is the sort of you can begin to see the screwy way in which my mind is working but nonetheless you’re getting an overell a right to something that’s
Terribly important to people and you can go back to the 19th century and see Myers where the Court held there is a right to educate your children and teach them German or teach them what you want and here there is a very important thing to people to marry whom they want
All right what’s the argument against it and this was a little surprising to me if you read through those 80 briefs or 90 briefs there were really only two major arguments one is religion religion many religions thought it was a very bad idea but we’ve just
Said is it because it hurts people they couldn’t answer that very well does it really hurt people the people involved doesn’t seem to somebody else who they made a big issue with that uh then they said well okay what’s your other reason for wanting it any others yes never been done
Before ah yes you laugh at that one because the Woman’s Place is in the home I that’s what’s going through uh Ruth ginsberg’s mind instantly never been done before a woman’s plac is in the home okay we got it that didn’t work and if that’s going to be your argument never been done
Before it’s not going to hurt anybody doesn’t seem at least their arguments weak on that one and um what else there wasn’t much else in those briefs so we have over here something that’s terribly important to the lives of an individual and something over here that isn’t too
Strong well that was enough to get the five that was enough to get the five and then you go back and say well what are these rights that aren’t mentioned in the Constitution see Nino and and I used to have big debates if he were here we’
Get into a major debate and he’d say what what are you doing Brier this is ridiculous he say say I’d say of course you have to interpret the cons so the rights within it change as circumstances change and I would say George Washington didn’t know about the internet and he would say I
Knew that and and then he he would say well um I’m I’m not saying that you’re not in good faith he understood after a while I’m certainly in good faith but he’d say look you have a way of interpreting the Constitution that is so complicated that
You’re the only one who can do it on your system and it’s going to be a God awful mess if people follow the way you want to do it and I would say what if they follow the way you want to interpret the Constitution you’re going to have a constitution no one will
Want h H and there you have a sort of state of the argument and moreover it’s the state of the argument right now right at this very moment and it is one is obviously right and the other is obviously wrong obviously I think I mean
I this is why law school is so important when I was in law school I mean I I read homes homes there’s a kind of instinct but more than that you can’t just go by Instinct you have to go by looking into the history to see what was important to
People and has been over time and may change over time and rights do evolve over time and then you have to uh look at a lot of things look at uh things like U consequences look at things like history look at things like uh how related is this kind of a right to
That uh look at things like what did they think at the time they wrote it that’s surely relevant look at things like how circumstances have changed do you think Brown would have been written if it hadn’t been for the Second World War I don’t I think the second world war and
Suddenly we had black battalions and we had uh brave people and and Bill colan who’s a friend of mine during that war was a an officer and and went into the Officer’s Club and they wouldn’t let him in h so he went to the Commanding General of the base and said they
Wouldn’t let me in Commanding General said to him when I think these words are important do you really want to go in and Coleman said yes I do very well they’re going to let you in now you see how things are changing you see how things are changing changing even in the
South no not yet that required a lot of work and how many people help all right I’m I’m trying to give you if you want to read what I’m trying to say read Justice Harland second Justice Harland read second Justice harland’s description of what are the rights that
The constitution protects and how do we find them it’s written in a concurring opinion in po Alman the contraception case and what does he think that contraception which by the way is not mentioned in the Constitution suddenly becomes something that does have some constitutional protection why or you want something
Else to read read the British Supreme Court opinion in the case pration of parliament see they don’t have a written Constitution but they have to decide and discover what it is that their law protect they go back into history they see how proing was used or wasn’t used
It’s a pretty good opinion at the end it’s very convincing right all that’s there all that’s there it’s not that you just sit there and say oh it would be a such good thing if in fact you could have homosexual marriage no that’s not the
Job the job of the judge is go back look at the history look at the words look at the consequences look at uh uh the values that underly the words that are written in the Constitution and then I don’t want to say guess but I do want to
Say there is a thing called judicial Instinct and that judicial instinct is not just for judges in one of the better articles I read when writing this it said look I want to flatter the dean or maybe you and I’ll say he’s a brilliant person she’s really brilliant that’s great for
A teacher not for a judge not or a judge the word of flattery is and the hope what you hope to achieve is an opinion that is sound and that’s good for lawyers too he’s a lawyer who has sound judgment she is a lawyer who will in fact lead
The client on a path that will turn out to be sound that judge has written an opinion that’s sound it means it works for the country it means it’s connected with the past it means it channels into a future which is more likely and if you think
That there is some dictionary you can look that up in no I don’t I don’t and when will we know if I really or any judge has really or any lawyer has given advice or written an opinion that is sound and the answer is that judge will
Never know it will be 20 30 40 years into the future when people will look back as we’re pretty sure they will with brown be bored and they will say thank goodness the court thank goodness the court understood understood the public and understood the law well enough to reach
That result does that mean politics no does it mean no politics no well what does it mean there Paul FR explained that very well he said in terms of politics no judge ever should decide something based on the politics of the day ah but the climate of the year
That is something different and the interesting question right this minute for you is where are we on that where are we what’s going on what should go on where do you actually disagree and if you actually disagree why and you find somebody who disagrees with you and then you say why and you
Listen to them and eventually they’ll come around to something you believe in let’s work with that that was Senator keni I worked for let’s work with that and then that’s what this country I think is good at we’re good at getting people who think different things and trying to get them
Together and it wasn’t just one group or another that brought food to the old people during Co up in Cambridge and it wasn’t just Cambridge it was St Louis it was Los Angeles it was San Diego all over the place okay I’ve said enough to pose a question for
You and I hope in two or three years or whatever year you’re in by the time you’re out of here you won’t have a definite answer but you will have an informed way of criticizing or praising the uh decisions that are written by the courts and the advice that is given by the
Lawyers very powerful and thoughtful answer so Mr chief justice you came out in a different way on the same-sex marriage you know what was what what led you to a different result uh will I uh I when I when I grounded my opinion I looked at fundamental constitutional values and to
My mind what is the morality which a judge imbibes and gives the expression to while deciding cases do give effect to a social morality and to my mind the answer is clearly no uh to my mind what a judge decides while interpreting the Constitution is a sense of constitutional
Morality and constitutional morality is something which is grounded in the fundamental values of the Constitution and what are those fundamental values of our constitution those fundamental values are Liberty equality and equal protection of laws the right to free speech and expression and above all fraternity and our constitution speaks of fraternity
Meaning thereby that it postulates the equality the Brotherhood the unique Oneness of our civilization and therefore to my mind when you interpret the Constitution you interpret the Constitution as a living or organic document uh we have in India don’t have this debate on whether we should interpret the Constitution from the
Perspective of what it was intended to be when it was adopted but how has the Constitution unfolded itself what is a backdrop in which the Constitution was born our constitution was born not merely as a document to witness the transfer of political power from a colonial regime to a homegrown regime for Independent
India but together with the movement for the transfer of political power to an independent regime an independent regime there was something more fundamental which was going on and that was that the constitution was always intended to be an instrument of social transformation you had group groups of
Indian citizens whether based on cast or patriarchy who were deprived of the birth of the Constitution of fundamental human rights and therefore the Constitution had a Clear Vision a vision which would Mark the Constitution not just as a political document but as a document which would witness a social
Transformation and therefore to my mind as a judge I mean I’m a judge in today’s Times contemporary times but I would join judge Justice Bri in saying that as judges it’s our duty fundamentally to look at the histories of discrimination which our people have suffered and to use the
Constitution as a peaceful means of bringing about a social transformation in so many societies across the world you find that the rule of law has given way to the rule of violence and the key to a stable Society is the ability of judges in that sense to use the Constitution and their own
Platform as a platform for dialogue as a platform for reason as a platform for deliberation and in so many cases that we decide including the case that we have uh been speaking about I think our outcomes are in themselves important but the process is itself as important as the outcome because in the
Process of constitutional deliberation that goes on in the court you Foster a new and emerging consensus and in that consensus which emerges through the process of judicial deliberation we put out a hope for a better future for our societies now obviously you cannot have a sense of unanimity on key
Constittution issues which we div which we decide and there’s a reason for it because I do believe that we as a Court reflect the diversity of our nation the diversity of our cultures the diversity of our own individual backgrounds and therefore bring to the table different ideas based
On our own experiences of life you can’t take it away from a judge but above all this I think the one key fact is to understand what the Constitution really intends to be because just as our societies are constantly in the process of evolution in the process of
Flux there are certain values in that sense constitutional values which must be Eternal to the existence of our Nations and it is on those values that democracy and the rule of law ultimately survives and thrives I believe that judges have a very vital role to play though we are not
Elected though we don’t go back to the people every 5 years to seek their votes but there’s a reason for that and the reason for that is I do believe that the judiciaries are in that sense a stabilizing influence in the evolution of our societies particularly in something like
Our age which is so rapidly changing with technology and we represent in that sense the voice of something which must subsist beyond the vicissitudes of time and in that ability of Courts to exercise a stabilizing influence I do believe that we have a role to BL in the overall stability of our own
Civilizations of our own cultures particularly in the context of a plural society uh such as India yeah I that what a terrific answer uh um so you know thinking about the same-sex decision seems to me that there are two things that you’re that you’re doing uh one is
When you’re in the minority your position is that civil union and also the adoption are essentially so wellestablished and clear that they that it’s the role of the court to recognize them but that there’s also a dialogic function you know and so uh I read your opinion to be supportive of same-sex
Marriage but to say but this is really I’ve told you what I think but this is a matter for the legislature and so there’s there’s a kind of a dialogue that I see going on um so Justice Brier do you think of courses in dialogue with the people or with
Congress and if so when easy to say yes but I don’t really think so they don’t read it I me very few you and you read you read in the newspapers some major decisions probably 40% 50% 30% every year unanimous and it will’ll take cases most of the work is where the lower
Courts have come to different conclusions on as to the meaning of the same words in a statute or or the the application of the Constitution you may have a case like we we had a case whether the comma that precedes the word for in the Internal Revenue code
Means that word for it could be interpreted as a which of that now why would we take that because different judges have come to different conclusions on that same question so we had to decide does the comma mean which or that now I like the case no one else
Did but but the but I mean it’s a wide range of things all right uh and when I worked in Congress which I did for a while one day I get a call from Chief Justice bur I’m a Staff person at some point I remember remember why is he calling me
You know he’s the Chief Justice the United States but I work that way no one else would talk to him they’re on a different time schedule they are on a different daily basis look this is Congress I go into my office over there and there’s a young woman
From one of the universities here and she’s going through all the papers on my desk excuse me I said how do you happen to be going through all he said all this serous what you did so I I thought I’d looked through all your papers I was getting a little
Annoyed but just before revealing how annoyed I was I thought huh maybe she’s a constituent you see that’s Congress that’s not the courts the courts we take a long time 3 months two months three months to try to figure out the answer to this thing they don’t have that time
If Kennedy received two phone calls calls one from the mayor of wiester and one from the Secretary of Defense and he has to take one or the other immediately I know which one he’s going to take he’s going to take the mayor of Wier of course they’re in his constituency all
Right it’s a different world and once we’ve tried with with Brookings uh toh send we thought they made a mistake just a mistake of drafting and send it over there so they can correct it and sometimes that works I can’t don’t say I’m saying zero it’s
Not zero I mean there is the longer run some kind of a dialogue Etc but you don’t feel it day by day but you you you uh not that that matters but you don’t you hope in the longer run somebody will read evenly whicher that opinion and there will be
People who are expert over in IRS and they will read it oh here it is when they read it next time they won’t write four they’ll write comma or something like that and things will gradually improve over time okay but that’s I think a more realistic based on my own experience account of
This relationship which is a tough one any reactions chief justice well uh looking at our cultural and social background I I do believe that courts today have become focal points of Engagement between civil society and the Quest for for social transformation so people approach the courts not just for
Outcomes let’s be very clear people approach the courts also for a voice in the process of constitutional change and I do believe that by giving a platform a public platform for that voice for social change courts in and of themselves are performing a very vital function why is that happening why are
People increasingly coming to the courts to voice opinions ideas aspirations for change that’s a complex question variety of reasons for that but it’s very important for courts because we are as much institutions of governance governed of course by principles of the separation of powers so we don’t take upon ourselves the role
Of the legislature or we don’t take upon ourselves the role of the executive but equally though we are bound by fundamental principles of Separation We are Becoming areas where people come in order to give vent to their expression for a society which they aspire to achieve whether it’s in the area of
Human rights of climate change of social social welfare and particularly because sometimes events which are taking place in society are taking place with such rapidity that courts in that sense have that sobering influence in areas where the Winds of Change are blowing rather fast because when you know the
Thunderstorms are approaching and we we have storms and we have uh clouds across Global Society I ities because one of the problems of a very interconnected World in which we live is that these interconnections really ensure that we don’t live as nations in silos therefore courts have a very vital
Role to play in that sense in steadying the ship when so much perhaps is happening all around our societies so jce prior um so one thing I’d like to go back to when you were talking about Brown uh I thought when I I heard you
Say that the kind of the the way in which it transformed Society was not kind of the doctrine but the result in other words it was something that probably should have been decided under privileges and immunities was okay but I mean you see that it led to problems and problems
This is a long thing so I’m not going to go into it but I think the way it’s written and I don’t know how else it could could have been written given the destruction of the of the uh uh you know privileges and immunities CL I don’t
Know how I would have done any better I wouldn’t but but but the the it then led to this affirmative action problem it provides a basis the way it’s written for saying uh no racial discrimination Pro black Pro white Pro anything I didn’t I I’ve written
Opinions on it I don’t agree with the way the court came out an affirmative action but that’s another story and and but that’s that’s so what is your point that you you have a tune that we are in the Supreme Court an institution of the federal government
It’s not a law school it is not is that’s what I said it’s not it’s not just politics that’s wrong anyone who thinks it’s like that woman in my office who was going through my papers is wrong that’s not how it works but it’s not not politics either completely all right so
Where are you in that and uh that’s something that takes a while to look at the different opinions and and Freud as I said said it correctly not the politics of the day never but this is popular forget it if you’re sitting over there thinking that you’re going to
Become very popular even with the group that normally supports your opinion forget it take a different job you will not come away having enjoyed that one of course you can’t do that it’s impossible and Don’t Go Near it but if you like and President Clinton said that to
Me at one point he said you know he said the Applause goes away and you’re left with the job so you better like it that interesting and that’s and what is that da da da it takes a long time to explain what I think that job really
Is so uh read the opinions Etc can I give one piece of advice absolutely go to India we loved it my wife was on this thing called uh uh what was it it was about the research on women oh and the yeah yeah and she and the woman who ran
At G was was Indian and we went over there several times you it’s fabulous it really is if you haven’t been there the people have a good sense of humor humor they’re all different they like to talk I like and they have really good food that
Was the only problem I I had an Indian law clerk who was great he had only one problem he was marrying someone and he came in one day looking very gloomy and I said what’s wrong what’s wrong with he says well my mother is worried that she
Will not know how to make a samosa so I said well she doesn’t know he no no he’s found it she knows she knows how to make the samosa he told his mother they lived happily ever after okay so there we are and it’s very interesting hearing that these are
Pretty similar problems and difficulties that they have in the Judiciary there actually um let’s I want to go back on affirmative action so you know that’s a case in which and first of all you should all go to India I just that’s absolutely fabulous um so the Indian Supreme Court has a
Different position than the current Supreme Court of the United States uh and it’s in part uh it’s in part grounded in your history and in the response to the cast system so you want to talk would you talk a little bit about kind of where the Indian Supreme
Court is and how it came out that way let me Begin by telling everyone here that unlike the United States our constitution entrenches the principle of affirmative action there are specific provisions of the Constitution which follow closely upon the provisions for the equal protection of laws these Provisions entrench
Affirmative action now the argument against affirmative action in India as well as in the United States is that affirmative action detracts from Merit and the argument against affirmative action is by having quotas we have quotas in education in employment and in political representation so let me first preface
The uh the point which I want to make by telling you what the argument is and the argument is that by having quotas or having affirmative action you’re essentially choosing people who are less meritorious but this is an area which we have worked on considerably because what do you really mean by equality
Itself you can look at equality as a sense of formal equality or do you look at equality as something more fundamental in substantive terms because if you look at equality merely as formal equality then by being colorblind or by by being blind to the histories of discrimination which our people have
Suffered you’re essentially giving weight to the social cultural and economic capital which the privileged have acquired over Generations so in order to have a Level Playing Field for those communities in our societies who’ve suffered from centuries of discrimination affirmative action in that sense is not an exception to
Equality but is a reflection of the principle of substantive equality second you have to redefine what you mean by Merit itself does Merit factor into account the social the cultural or the economic advantages which the resourced in society have or do Merit in that sense have to be redefined to provide for a
More inclusive Society if you Define merit in terms of inclusion namely the importance of allowing people who have suffered from histories of discrimination to assume more important roles of decision-making responsibility in our societies then you have the answer to your question so it really depends on how you frame the question if
You frame the question in terms of formal equality you’ll have a different answer if you frame the question in terms of substantive equality and I believe the latter is more correct because our constitutions were not in that sense blind to the need for social transformation and if our constitution
Is not blind to the need for social transformation then the way we Define equality or Notions such as Merit would really furnish us answers on which is the which is the way which is the way forward and it’s not enough to say that well the way we interpret our laws or or the
Constitution must be colorblind or oblivious of skin color because underlying all that is that all that comes with a lot of accumulated disadvantage but our task in India has been a lot simpler I believe because in that sense we do not perform a counter majoritarian function in so many which
Ways judicial review is regarded as being counter majoritarian uh of course we also exercise a countermajoritarian function when individuals stand up against a violation of Rights but in so many which ways India is a little different because those who have suffered from histories of discrimination are not necessarily in a
Numerical in a numerical minority they represent the heart of India so in that sense uh the courts by you know giving effect to fundamental constitutional principles are seeking to remedy these histories of discrimination which our own citizens have faced and therefore in terms of affirmative action we have and
We continue to uh give a very strong uh sort of uh support to affirmative action policies uh right from uh the Justice Bri you know that’s a very different than the Baki approach in other words the kind of the justification for affirmative action is not as in India about leveling the
Playing field but it’s about kind of creating a diversity of voices and the Supreme Court has rejected that what are what are your thoughts on you know you I mean you’re Champion look Brown a very interesting thing to read you want to read something interesting read through good Marshall’s
Argument and why I found it so interesting hardly says anything about the meaning of the equal protection Clause he thought every one of those judges thinks that racial discrimination is wrong and against the Constitution and he was right basically I mean you know it didn’t you’d have to
Be an idiot not to see as I said what was going on all right but then what’s this problem they’re thinking that if we say readed holes in at the turn of the century if we say that you have to enforce the 14th Amendment or you have
To treat people equally or you have to let black people vote that’s holes they won’t do it it’s not the black people who won’t do it it’s the white people who won’t let them do it that’s what’s going to happen and Marshall is telling them look
We can do it we can do it now you can get this enforced you can get it enforced well go look at the history of the next 15 years yeah could get rid of legal segregation on the law and uh then read a good book that I recent I’d never
Read web de boys have you ever read it read it and you see what happened after the Civil War you will see the history of what went on for 80 years and you will see when you go then to Brown yeah Frankfurter said to Phil Elman is law clerk when Vincent died because
Vincent thought they shouldn’t have a brown V board and when Vincent died he said now I know there is a God well it took them a long time and you read through that in the history of the country and so forth I once asked Vernon Jordan who was a great
Civil rights leader do you think Brown really made a difference or do you think that it would have been you know we’ been in the same situation anyway with all of the civil rights leaders he said of course it made a difference of course it did is the very least a catalyst all
Right now that’s in my opinion basically what brown is about can this court get up and say what they know all right and how long will it take and will Congress help them answer no they didn’t help him one little bit and what was the key moment in my mind it
Was Eisenhower deciding to send those 101st Airborne uh troops uh the ones who had uh landed on the church Steeples in Normandy everyone knew who they were at that time the ones who were the heroes of the Battle of the Bulge send them the Little Rock to be
Sure integration goes on which it didn’t they had to leave and then back to the court and then the court says no integrate and then they close all the schools and then we have Martin Luther King and the Freedom Writers and then gradually we begin to get rid of this
Legal segregation you see I say that because that case is about the country it’s about the country more than it’s about some principle of Law and now just now they’re beginning to perhaps wrongly perhaps rightly but extract various principles of law from that and uh I still when I wrote on this
Which was 10 years ago I guess I said I want it still to be about the country and we don’t know what’s going to work and we want to bring people into this country it’s not India it’s not 1.4 billion but it is 340 million or 334
Million let me not exaggerate and and 300 34 million people of every race every religion every point of view that’s a challenge that’s something and he understands that perfectly well and and how is I I wrote in the opinion let people try different things they want to try affirmative action let
Them try it and uh but we’re down in the beginning with all right I won’t go into all of that I will just say what you’re seeing right now in front of you is people going into cases into what whether they said this thing or that thing and
There and I think it’s still a question of what kind of country do we want in the United States of America because the the uh equal protection Clause was bringing people in not keeping them out and I think there is a big difference there all right
That’s that’s that’s too long I can’t do this in less than two or three hours but but you get an idea that’s right and we’ll have you back so U we have time for a couple of questions if we have questions from our audience yes so my question is more on
The context of judicial appointments between us and India if you talk about us it seem that they have more like a lifetime appointment system versus the mandatory retirement age which we notice in Indian Contex uh justice CH would you like to give your comments on uh whether
That is something given the given the judicial vacancies is that something which we should consider or that’s not for us well in our high courts we retire at the age of 62 and in the Supreme Court the Constitution tells us that we retired at the age of 65 speaking for
Myself I do believe in the importance of an age of retirement for judges uh maybe that’s the way my mind has been trained because that’s how we have learned the Constitution and you’re ingrained with these ideas but from a purely theoretical uh construct of constitutional law I think it’s
Important that we must allow and and that is really in that sense a virtue of our system that we allow for succeeding generations of judges to assume the mantle of decision makers and therefore to correct us if we were wrong and I think that’s a very powerful uh state statement of uh you
Know the theoretical construct of our constitution uh the second thing are related to your question is that we’ve been criticized very often uh as being a polyvocal court so we are 34 judges in our in our court and we sit in panels of two or three Where we exercise appellate
Jurisdiction we are a final court of appeal but we sit in larger panels of five or seven or more when we are deciding important constitutional questions but I do believe the polyvocality of our court far from being a source of weakness is in that sense a sense of
Strength to the institution of judicial review itself because it allows for greater flexibility we of course follow principles of legal certainty when we say that benches of two are bound by co-equal benches unless you’re overruled by a bench of three but inbuilt in our system including on what you said namely
An age of retirement is the postulate that it’s important that we must have a certain degree of flexibility for change which I believe judges who lay down office at a certain point of time leave for the future because we must allow make that allowance for the future to self-correct
Our own mistakes or perhaps look at a a future Society just Brier should we have had a should we have a mandatory retirement age if you could right start from scratch I would it would be better for the judges it be easier would have been easier for
Me if you if you had a term and but it has to be a long term here you don’t want somebody sitting over there thinking about what his next job is be and so I said 18 years I don’t know 20 years would it matter if you had some
Long term like that no I don’t think so I think I think it would be better for the judges and but not a short one not short but an age and better for the judges in what way you wouldn’t have to worry about whether you’re going to retire or
Not are you having faces cuz you’re such a young man when I was about 84 years old I had to think about this pretty hard I said 884 now I said no 84 is the is the new 18 but I didn’t I I know I had to think
About it fairly hard and if there would have been a mandatory retir I wouldn’t have had to was saving wear and tear my wife would saved her a lot of wear and tear um Mr Su good afternoon my name Is work with Francisco Al not um my my question is for the Chief Justice um in loving V Virginia the US Supreme Court held that the that marriage is one of the basic Civil Rights of Man and on that basis the court struck down Virginia’s anti- insonation La um I’ve long viewed cases
Like J and the V India’s love uh these two cases involved interference by state and non-state actors and the marital relations of cost in a coule our Supreme Court then had no hesitation holding that the right to marry a person of One’s Choice integral to article 21 of
The Constitution the right to life the court enjoined State interference and even issued directions to the state to take affirmative steps for the protection of these governs now at last week ruling in suprio the court has unanimously held one that there is no fundamental right to marriage and two so
Held that the constitution of India does not in fact enjoin the state from restricting choice of marital Partners based even on ascriptive core identities of cens does this mean that a Virginia style anti-ag statute would today be constitutional in India if not what constitutional grounds might an agreed interracial couple inoke to challenge
Such oh uh udit I I’m told that you are one of the petitioners in the uh in the same sex marage case uh well uh let me uh frame my answer like this uh in my judgment I have specifically said that there are certain values in a marital relation reltionship
Which find an emanation in fundamental constitutional values and I’ve emphasized the right of choice the right to choose your own partner the right to cohabit with a person of your choice and therefore the right to find someone with whom you want to live your life or uh to
To be a part of your own emotional psychological and social being as as a partner so I do believe that in my judgment have given vent to those basic aspirations of constitutional jurist Prudence having said that it becomes far more within the realm of judicial review when you look at and apply the
Anti-discrimination principle if the state were to enact a law which specifically discriminates against marital choice or the choice of a person to marry outside your cast or outside your religion that would be amenable to judicial review applying wellestablished standards of equal protection or due process which we’ve Now read into the
Right to life and personal Liberty the difficulty which judges faces in the absence of a statutary regime do courts have the authority in a system Ved to the separation of powers to create an alternate statutary regime so it’s far easier for the courts to wield the power of judicial review when you’re applying
A piece of legislation which is discriminatory as opposed to an appeal to the court to laying down an entirely new legislative regime going back to the the same-sex marriage uh case there was a challenge in that sense we were we we were told that the special Marriage Act is
Discriminatory because it applies only to heterosexual couples now if the court were to strike down that legislation the consequence would be as I said in my judgment the consequence of that would be that you would be going back to the position as it obtained even before independence which was that there
Was no legislation at all for people belonging to different faiths to get married so striking down legislation which is really the classical power of judicial review would not be adequate itself because you would you would be coming out with a prescription which is worse than the disease itself
So what does a court then do does a court have the power in a democracy or in a system governed by the rule of law to lay down new legislative mandates that’s where the difficulty really arises can the court in that sense fashion a new legislative ordering or does that Court then defer
To the legislature uh in several comparative law uh jurist Prudence uh several comparative law areas that we considered in in our judgment we found for that matter that the legislature had in graduated steps intervened to protect the right to marry of same-sex couples by legislating for a union a civil union
As in the UK and then eventually recognizing the right to marry so for judges it’s more within the Ken of judicial review if you are confronted with a statute which can be brought within the fold of the anti-discrimination principle as opposed to a plea of fashioning entirely a new legislative regime of
Rights and that’s where really the the the core of the problem which Court’s face arises can you create a new regime for succession can you create a new regime for for tax can you create a new regime for social welfare benefits because these are not areas which stop merely at
A declaration of a right but following a declaration of the right the remedies which are sought are clearly within the province of the legislature so any any Reflections on that Justice Prior well was going to the argum I mean there we’ have probably more experience with discrimination against women where so
Just and it’s been criticized it’s been criticized quite a lot but it’s pretty well my my you may have missed that but I’m not going to repeat it so um I think we’re actually right at the time add one can I just can I just add another thing to this uh for
Instance you know where we have dealt with issues relating to gender uh for instance the exclusion of women from the armed forces from being granted permanent commissions we found it much easier because we struck down a provision of regulatory uh conduct which prevented women from joining the armed
Forces and we said that was clearly discriminatory and therefore you must allow women to enter into the Armed Force es or where we provide for the medical termination of pregnancies uh we have a law in India which says that you can have a woman can have uh a right of termination of
Pregnancy up to 20 weeks in certain circumstances and that’s extendable to 24 weeks for married women well we struck down the distinction between unmarried and married women by saying that there’s no rational distinction to distinguish between unmarried women who want to terminate their pregnancy and married women who are given the right to
Terminate pregnancy so we extended effectively the period from 20 to 24 weeks by applying the common yard stick to married as well as to unmarried women so where you’re in the realm of discrimination the courts have a far wider scope for expanding their jurisdiction uh in such cases which I
Thought I’d just highlight in the context of gender I said this has been extraordinary uh you know what privilege to be able to hear from the Chief Justice and Justice Brier in such a Freer ranging conversation about constitutional law so first I’d like to thank Viva and and and Dean Vasquez and
Also Dean cender for helping make this possible but and I’d like to just a big round of applause for our [Applause] speakers and I believe we now have reception so I think we should Jour to that
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