SC must act as custodian of Constitution: Justice Gavai

The Constitution of India is evidence of the transformation of the governance structure in India from the “order of the Queen” to the “will of the people”, Supreme Court judge Bhushan R Gavai said , emphasizing that the apex court must act as the custodian of the Constitution and the ultimate arbiter of justice.

“It is the duty of the courts to ensure that the law remains relevant amid shifting societal norms, and when faced with multiple interpretations, the courts opt for the one that best advances the constitutional values. Central to this transformative ethos is the role of the Supreme Court, which has to act as the custodian of the Constitution and the ultimate arbiter of justice,” said the judge.

Justice Gavai, who is in line to become the Chief Justice of India (CJI) in May 2025, on Tuesday delivered a speech at Columbia Law School, reflecting on the transformative journey of the Indian Constitution over the past 75 years, highlighting the pivotal and transformational role the Constitution has played over the years in ensuring key freedoms to people. Simultaneously, the judge cited the crucial functions of the courts in upholding the cherished values enshrined in the Constitution.

“While democracy needs to be protected and upheld at all times by the people, the courts play a seminal role in reinforcing the supremacy of the Constitution and determining the validity of legislative and executive actions on the touchstone of the principles of the Constitution. The principles of democracy and judicial review are intertwined and complementary. These form the core of the basic structure of the Constitution,” said justice Gavai.

Referring to the recent Supreme Court verdict in the electoral bonds (EBs) case, the judge specifically pointed out that the success of democracy is contingent on the voting process adhering to the laws and the ideals of the Constitution. Justice Gavai was one of the judges on the Constitution bench that quashed the 2018 EB scheme by a judgment on February 15.

Justice Gavai said: “In a very recent judgment on the validity of anonymous electoral bonds, the Supreme Court held that disclosure of information on electoral bonds to the voter cannot be restricted on the grounds of the informational privacy of the financial contributions to political parties.” He added that the expansion of the freedom to speech and expression under Article 19(1)(a) to include the right to information is a crucial recognition for the citizenry to effectively participate in the elections, which, in turn, is an intrinsic feature of democracy.

The topic of justice Gavai’s lecture, “75 Years of Transformative Constitutionalism,” was divided into three sections. He began by exploring how the Indian Constitution reflected a transformative intent, emphasising India’s departure from a society marred by inequality and injustice towards one that upholds justice, equality, liberty, and individual dignity.

Delving into the transformative intent of the Indian Constitution, the judge elucidated its foundational principles of equality, liberty, and fraternity. He stressed on the framers’ conscious efforts to address existing inequalities through provisions such as Article 14, which guarantees equality before the law, and Article 17, which abolishes the practice of untouchability. When justice Gavai assumes CJI’s office in May 2025, he will be just the second member of a Scheduled Caste to lead the judiciary.

Moving on to legislative commitments, justice Gavai highlighted landmark enactments aimed at upholding constitutional ideals and securing the rights of marginalised communities. From the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act to laws protecting gender rights and child welfare, he illustrated how legislation has been instrumental in advancing social justice.

The role of the judiciary, particularly the Supreme Court, in interpreting and upholding the transformative ethos of the Constitution was the third focal point of the judge’s speech. He emphasised the top court’s evolution from a textualist to a living constitutionalist approach, expanding the scope of fundamental rights and promoting equality and non-discrimination.