Is it fair to commend Chandrachud’s form ignoring the content? | Faraz Ahmad

In the late nineteenth and early 20th century when Urdu poetry was at its zenith there was a heated debate among the reigning Urdu poets from the Lucknow school as against the poets of say Western India or Hyderabad Deccan on the metre and rhyme as against the content of the poem composed by a poet if he or she did not belong to the Lucknow school.

The Lucknow school for instance looked down upon even a great poet like Iqbal citing the same metre and rhyme shortcomings in their perception in certain widely appreciated poems of Iqbal. As a matter of fact, this wasn’t a new debate. With the rise of Marxism, Europe was holding animated discussions on Art for Art’s sake essentially to denigrate the message a particular art work sought to send across, promoting vacuous form and holding it in far greater esteem. This was aimed at denying the rightful place to Marxist Art and literature. And this debate remained alive even in our times when we were in the universities in the 1970s. We were introduced to Christopher Caudwell, the great Marxist scholar, critic and revolutionary whom the Fascists killed during the Spanish Civil war. Such was and continues to be the aversion or may I say fear of substance among the status quoists that they rise to defend even the indefensible acts of their comrades.

A case in point is Congress leader, spokesman and a leading legal practitioner, who has taken up cudgels on behalf of just retired Chief Justice of India D.Y. Chandrachud whose many acts of omission and commission have become a subject of hot debate in legal circles. We discovered from Abhishek Singhvi that we have in our courts even the higher courts judges who either do not write their judgements or simply incapable of penning down the judgements they pronounce in open courts. Surely this is not merely a reflection on the competence of the concerned judge or shall we say judges alone, but more a reflection on those who chose to appoint and promote such judges.

I remember there was a scam in the first incarnation of the NDA government relating to DDA of arbitrary allotment of flats and plots to undeserving elements for monetary considerations or simply to seek favours also involving a High Court judge who it turned out had been appointed as a judge by a minister at the instance of a leading journalist whose judgements had to be outsourced. Considering how things moved in this close familial relationship of the Parivar, I do not rule out such a possibility or shall we say possibilities. Is that the reason why Justice Chandrachud, not the Chief Justice then, was delegated the responsibility of writing out that judgement by sitting before God and seeking his blessings before writing out that blatant travesty of justice, which we have it now directly from his account. Enough has been written on this issue for me to repeat it here and I won’t.
For those stressing on the form like Singhvi, it is important as he wrote that “both as a puisne judge and as CJI, DYC has authored more nine, seven, five and three-judge judgements than any of his predecessors in the past two decades.” For Singhvi, “Merits apart, to wield the pen (actually the computer) with such dexterity has not been seen since the 1960s and ‘70s. If judging and writing judgements and writing them well, is the primary test for a judge (something too easily forgotten) no fair view can say that DYC has not passed it with flying colours.”

But does it really warrant singing paeans that too from one of the foremost and seniormost lawyers of the country at a time when the executive is out to sabotage and destroy the independence of judiciary, Election Commission and other institutions and has moved on with its agenda right under the nose of the Supreme Court under the chairmanship of DYC? For instance, when the Supreme Court passed an order directing that the appointment committee for the selection of the Election Commissioners comprise of the Prime, the Leader of Opposition, and the Chief Justice of India or his nominee, the Government swiftly passed a law replacing the CJI with a cabinet minister, thus showing who is the boss. And the simply CJI sat with his hands on his lap.

Whether Justice Chandrachud invited the Prime Minister home for Ganesh puja this year on Ganesh Chaturthi or the Prime Minister invited himself to the Chief Justice’s official residence, makes little difference for the PM could not have come unannounced. A lot of security checks and preparations are made before the Prime Minister ventures out.

It is mentioned by Chandrachud fellow judges that as Allahabad High Court Chief Justice, while he used to hold Ganesh puja every year and invited his fellow judges and legal luminaries, he never invited the chief minister or any minister or governor for the puja at his official home and expected other judges to follow the same. Even in Delhi he has been here since 2016, first as a judge of the Supreme Court and finally promoted in 2022 to the post of the CJI. Why did he have to choose months before retirement to commit this unusual act?

In 1976 a few months after the imposition of Internal Emergency by Indira Gandhi a Supreme Court’s Constitution bench also comprising of DYC’s father Yashwant Vishnu Chandrachud ruled in what is recorded in judicial history as the Jabalpur ADM case permitted the suspension of the right to life and liberty in the state’s interest preventing the high courts from hearing detainees’ plea for liberty. Two years later Y.V. Chandrachud was elevated to the post of CJI and remained one till 1985 becoming the longest-serving CJI till then.

Once Dhananjay got to the Supreme Court he overturned his father’s ruling in ADM Jabalpur case, thus restoring the right of life and liberty to citizens even during Emergency. But Modi-Amit Shah have surpassed Indira Gandhi’s Emergency by many, many yardsticks. Yet be it the Bhima Koregaon detainees, or the young student, research scholar activists like Umar Khalid protesting against this Government’s laws the courts, led by the Supreme Court have created a record of sort in postponing or rejecting Umar Khalid’s bail plea, while the beginning the trial is nowhere near in sight.

As Master of the Roster, the CJI sent Khalid’s bail petition before the Supreme Court to the bench of Bela Madhuriya Trivedi, a junior judge who consistently ruled in favour the Modi government, forcing Umar Khalid to withdraw the plea on account of “Tarikh pe Tarikh” with no hope of being heard. The CJI is fond of making public speeches describing his high ideals and asking judges to grant bail without fear or favour he in fact mentioned how within a few hours of detention in a case involving complicity in suicide against TV star Arnab Goswami granted bail. But Goswami is the most vocal spokesman of Modi and his communal politics, while the Bhima Koregaon victims and the fellow activists of Umar Khalid are all those protesting peacefully against this government policies. He spoke of freedom of speech but has not thrown out of the window the false case against the digital media NewsClick. And who can forget how he simply put law and jurisprudence into the stove while hearing the petition for reviewing the case of what the petitioners described the murder of Bombay High Court Judge B.H. Loya a fellow judge with whom Justice Chandrachud might have even worked in the Bombay High Court or at least knew of him as a fellow judge from his mother court. It is therefore ludicrous for someone of the eminence of Singhvi to ignore substance and harp on the form alone