Justice done can quickly be undone if people don’t have right discourse: Justice Chandrachud

Referring to the withdrawal of a recent ‘Karva Chauth’ advertisement featuring a same-sex couple in view of protest, Justice Chandrachud said the decriminalisation of homosexuality in the Navtej Singh Johar case was alone not sufficient for the members of the LGBTQ (Lesbian, Gay, Bisexual, Transgender or Queer) community to realise their rights.

The judge was referring to the advertisement of Indian firm Dabur on ‘Karva Chauth’, a Hindu festival which is prevalent in northern parts of the country and in which wives keep a day-long fast and perform ‘puja’ for the well-being of their husbands.

The advertisement, showing a women couple celebrating the festival, was withdrawn by the firm after facing backlash on social media and from a politician of Madhya Pradesh.

“Though the courts expand the horizon of constitutional rights to safeguard the interests of marginalised groups, if people do not keep up with the right discourse, justice done can be quickly undone.

“The decriminalisation of homosexuality in Navtej Singh Johar was alone not sufficient for the members of the LGBTQ community to realise their rights. Four years after the judgement in Navtej, an advertisement for a fairness cream that depicted a homosexual couple celebrating Karva Chauth was taken down after strong protests,” Justice Chandrachud said delivering lecture on ‘The Future of Mediation in India’ at the ILS Law College in Pune.

He said he must not be mistaken to mean that the rights claimed need to be shifted away from the public arena to private mediation settings.

“I am merely questioning the discourse that class actions (lawsuits) in courts are the only way to meaningfully claim the rights in public spaces. The method of dispute resolution that a party chooses is dependent on various factors such as economic capability, emotional vulnerability and access to resources amongst others,” he said.

The judge said courts in India are crowded and in view of large pendency, dispute resolution mechanisms like mediation are an important tool that goes about in a non-adversarial manner. He said mediation can bring about social changes and could be more beneficial to marginalised communities and women.

“Mediation helps in bringing clarity as to the nature of the dispute. But it has its procedural and structural inequalities. The bias in the process of Mediation translates in two forms – first that is inherent in the process because of the unequal bargaining power of the parties, employer vs labourer, landlord vs tenant, wife against her much more resourced husband.

“Second, the bias of the mediator who is supposed to be a neutral third person in the mediation proceedings,” he said.

The apex court judge warned against parties agreeing to go for mediation merely out of deference to the authority of courts.

“Courts shouldn’t impose their opinion on the best legal resolution process. I have held back from always referring to mediation as a judge. It is quite possible that parties might not want to mediate. The biggest fear is they would be mediating out of deference. We don’t want that,” Justice Chandrachud said.