Liberty Cannot be Bartered, Protecting Civil Liberties Should be Sole Guiding Force: Ex-CJI Dipak Misra
Justice Misra said that the concept of liberty has to be weighed and tested on "touchstone of constitutional sensitivity and protection and the values it stands for".
New Delhi, Dec 8 (PTI) Former chief justice of India Dipak Misra on Saturday said liberty is a “permanent value” which cannot be “bartered” and any dilution of civil liberties will lead to disorder and anarchy.
“Life without liberty is meaningless… life and liberty must welcome dissent, discord, disagreement. Without them life is a rose without fragrance,” Misra, who had presided over benches which delivered key verdicts related to fundamental rights like liberty, sexual autonomy and dignity, said at the Jagran Forum organised here on the 75th anniversary of the Dainik Jagran.
Quoting former US president Thomas Jefferson, Misra said, “When the government fears the people, there is liberty. When the people fear the government, it is tyranny”.
The former CJI referred to recent judgments by Constitution benches of the apex court on issues like decriminalising consensual gay sex and allowing women of all age groups into Kerala’s Sabarimala temple. He stressed that the right to choose was a key part of liberty.
“When the court struck it (provision criminalising homosexuality) down, various opinions were drafted but the basic was that you must have choice, dignity and autonomy,” he said.
Civil liberties are the cornerstone of the nation and their “dilution” will “lead to disorder anarchy”, he said, stressing that protection of civil rights should be the sole guiding force.
The CJI also said that if anybody plays with the Constitution, “then he should know that he is compromising with the rights of his future generations.”
Speaking during the panel discussion, former Attorney General Mukul Rohatgi was of the view that the apex court decision on consensual gay sex came as “society was ready” for it. However, former Supreme Court judge Gyan Sudha Misra said gays, lesbians and transgenders suffer from “psychological disability” and “should be given counselling”.
Rohatgi hailed the apex court verdict which decriminalised consensual gay sex between two adults, but differed with the majority verdict which allowed all women to enter the Sabarimala temple.
“The judgement came because of the change in the society. The society has slowly started accepting it in the past few years in India. The society was ready for it. It is not so that the Supreme Court judgement came and then the society is accepting it. The society was ready for it and hence the judgement came,” said Rohatgi.
He, however, did not agree with top court’s decision in the Sabarimala case, saying it was not for five judges to sit and decide whether a practice that has been continuing for hundreds of years was correct or not.
“The religious practices at Sabarimala are continuing since hundreds of years. The question is not whether the practises are right or wrong. Five judges cannot sit and decide that what have been going on for hundreds of years is right or wrong. The Supreme Court’s decision is wrong.
“I agree with the dissenting judge in the verdict who said that religious practices cannot be tested on reason and logic. The Supreme Court’s decision on Sabarimala was based on reason and logic,” said Rohatgi.
Former Supreme Court judge Gyan Sudha Misra, who also participated in the discussion, said: “The court always maintains a balance. Since the Supreme Court has given a judgement, hence we too should respect an individual’s liberty.
“According to me, this third gender, gay, lesbians, transgenders, is a psychological disability. If a person is disabled, he can be given counselling, shown the right path. To say that it was not a disability and to suppress it is wrong. It needs medication,” she said.
Justice Dipak Misra said that it is important to exchange ideas and thoughts and “freedom is one thing which cannot be compromised”.
He also spoke about giving the status of third gender, adding “identity is divinity and it cannot be destroyed”.
It was the duty of the constitutional court to protect the identity of people, he said.
While lauding the apex court verdict in the case of Hadiya, the Kerala woman who was at the centre of an alleged ‘love jihad’ case, Justice Misra said that the concept of liberty has to be weighed and tested on “touchstone of constitutional sensitivity and protection and the values it stands for”.