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Mainstream, Vol 62 No 46, Nov 16, 2024
Chief Justice Chandrachud: A Legacy With A Promise of Greatness Stands Perilled | Vijay Kumar
Saturday 16 November 2024, by
#socialtagsThe 50th Chief Justice of India, Justice D.Y. Chandrachud, has demitted the office on controversial notes. Any objective and fair assessment of his tenure entails, perforce, to divide his term preceding his appointment as Chief Justice or after that. By the same token, the judgments rendered by him, and their scrutiny could be classified in accordance with the subject matters. As the Chief Justice of India has immense administrative power, apart from his judicial power, Justice Chandrachud, and for that matter other Chief Justices, must be assessed separately as the Chief Justice and as puisne judge.
Justice Chandrachud was born with a silver spoon. He is the son of Chief Justice, Y.V. Chandrachud, who was Chief Justice of India for more than 7 years – the longest term held by any Chief Justice of India. The academic credentials of Justice Chandrachud can be envied by his peers. He graduated from St. Stephen College, one of the best colleges in India, with Economic Honours. He did LL.B. from the Campus Law Centre at a time when it was rated as the best law school in Asia. Thereafter, he went to Harvard University, the most prestigious Ivy League Institute in the US, where he did his Master in Law, followed by a Doctorate. Justice Chandrachud embarked on the profession, and later on elevated to the Bench, with this covetable background.
Therefore, it was natural that when he was elevated in the Supreme Court in May 2016, there were high expectations from him, and, to my mind, he lived up to the expectations till he adorned the post of Chief Justice of India in November 2022. Except few disturbing, though consistent pronouncements of his pertaining to secularism, he, by and large, covered himself with glory. His dissent in the Romila Thapar case (pertaining to arbitrary arrest in Bhima Koregaon) and Aadhaar judgment in favour of the importance of Rajya Sabha as an integral facet of the Bicameral Legislature, and thus, could not be circumvented by arbitrarily levelling the bill as a “Money Bill” stand out. His other judgments, which are either the lead majority judgments or separate concurrent majority judgments, in the statehood controversy of Delhi, the Sabrimala matter (pertaining to entry of women of certain age in the Temple), Puttaswamy case (concerning the Right to Privacy), striking down the part of IPC provision criminalizing consensual sex between adult and the discriminatory treatment for the offence of adultery and few other judgments have enriched our constitutional jurisprudence. Along with these truly landmark judgments having transformative potential, his numerous other judgments in favour of women and disabled persons deserve praise and appreciation.
One significant area where he was regressive right from the day he was elevated in the Supreme Court pertains to the issue of secularism. Right from his dissent in Aviram Singh, rendered in January 2017, in which infamous Hindutva judgment of 1995 holding that appeal in the name of Hindutva, in absence of any evidence of creating animosity between two communities, was not a corrupt practice within the meaning of Section 123(3) and 123(3)(A) of the Representation of Peoples Act, 1951 was overruled by the majority of 4 to 3, he maintained his anti-secular proclivity. This judgment was followed by notorious Ayodhya judgment rendered by 5 Judge Bench in 2019 which was always believed to be authored by him. Now he has himself let the cat out of the bat about the authorship of Ayodhya judgment by asserting that he was guided by the God to pen down the judgment. This assertion in his interview has been condemned widely. His Ayodhya judgment bristles with numerous irreconcilable contradictions. On the one hand, he ruled that the demolition of the mosque on 6th December 1992 was an egregious act of criminality, and in a similar breath, he rewarded the wrong-doers with the right to construct a temple. Not only that, he threw the wholesome principle of secularism out of the window by creating a Trust under the government for the purpose of the construction of the temple, which allowed Prime Minister Modi to hijack the construction of the temple for his own aggrandizement and his party’s electoral prospects. The Ayodhya issue was litigated all along by the sections of Hindu and Muslim groups, and the court was entitled to decide in favour of one or other group on the basis of evidence, but there was no justification whatsoever to let the government hijack everything. Another troubling question arose that if evidence supported the claim of Hindus, there was no justification for allotting five acres of land to Muslims for the construction of a mosque, which only underscores the guilty conscious of the Bench. One of the lasting negative impacts of Justice Chandrachud in the Ayodhya judgment is that the faith and belief of the section of the majority community was privileged over the law of the land. The most concerning is his Volta face on the interpretation of the Place of Worship Act, which froze the religious structure as it existed on 15th August 1947, in the Benaras and Mathura controversy. Therefore, Justice Chandrachud’s legacy on the issue of secularism is extremely disturbing, and it may not be easy for his successor(s) to undo his regressive legacy.
The most disturbing part of the legacy of Justice Chandrachud pertains to his tenure after his appointment as Chief Justice. Except electoral bond judgment, which, too, was handed down just before the 2024 general election by which time the BJP had already extorted huge amounts, he has not rendered any significant constitutional pronouncement that had the potential to hurt the Modi Government politically. He deferred many judgments which suited the Modi Government. The judgment in J&K bifurcation and abrogation of autonomy under Article 370 of the Constitution is notorious judgment which has the effect of distorting the asymmetrical nature of Indian federalism. The Indian Constitution recognizes the solemn pact; whether it is autonomy granted to erstwhile J&K under Article 370 of the Constitution or reservation in favour of Buddhist Sangha in Sikkim Assembly, inserted through 39th Constitutional Amendment, in pursuant to Sikkim integration with India.
It must be said in unequivocal language that Chief Justice Chandrachud, during his tenure as Chief Justice of India, was beholden to Modi Government and the very fact of his inviting Modi in his residence on the occasion of Ganesh Puja amply establishes it. On this issue also, he has been pilloried widely, including by this writer (see Mainstream Issue dated 21st September 2024). Now, when he has retired, he has been justifying his act of inviting Modi by parrot-like repletion that, when the Chief Justice and Political Executives meet, they don’t discuss the pending issue before the Court and no deal is struck. He has been conveniently ducking the issue of propriety. It was nobody’s allegation that Chief Justice Chandrachud and Prime Minister Modi discussed any case or any deal was struck between them. We condemned the action on the grounds of propriety grounded in the wisdom that “Justice must not only be done but must manifestly be seen to be done”. Just as the writer owes his importance from the aloofness, the judges have to maintain a distance from the politicians.
After becoming Chief Justice, Justice Chandrachud started playing to the gallery. No Chief Justice of India indulged in such a blatant act of self-publicity as he has done. More than his obsession with his own image, there was a Himalayan gap between his daily dose of lecture and his pronouncements in the Court. His lecture was always turgid, and even scholarly, but when it came to stand up to the Modi Government, he never lived up to his lofty rhetoric.
The most favourable decision, in my mind, made by Chief Justice Chandrachud in favour of Modi Government is his order in Hindenburg Report. He constituted the Committee in such a manner as to ensure the death of weighty report and screening Adani, and for that matter Modi Government, from scrutiny in corruption allegations.
Equally objectionable is the Chief Justice, Chandrachud, disparaging comments made against Justice Krishna Iyer and Chinnappa Reddy, regarded as the greatest humanist among the judges of the Supreme Court, on the issue of interpretation of “community property” in the judgment delivered in the last week. The interpretation of the Court changes in accordance with the changed economic policy. Chief Justice, Chandrachud is right in his judgment that all private properties cannot be encompassed within the ambit of “community property” enshrined in article 39(b) of the Constitution, but his criticism of Justice Krishna Iyer and Justice Chinnappa Reddy is churlish, and was rightly objected by powerful dissent of justice Nagarathna and Dhulia.
On balance, the judicial side of Chief Justice Chandrachud is mixed. The judicial legacy is mixed not because he handed down any disastrous judgment, but mixed because he failed to ensure the compliance of his judgments by the contumacious conduct of the Modi Government. His judgments in the power of Delhi Government, restoration of the statehood of J & K by 30th September, 2024 and numerous other judgments were circumvented and normative labour made by him was frustrated by the Modi Government with impunity.
To my mind, Chief Justice Chandrachud was disastrous in his administrative capacity. Unlike the US Supreme Court, which always sits in banc, and that makes the Chief Justice merely first among the equal. But Indian Supreme Court sits in Benches, and it is the absolute, unchecked and unaccountable prerogative of the CJI, as a ‘Master of Roll’, to fix benches, and thereby determines the outcome of politically sensitive cases. It is this power of ‘Master of Roll’ that makes the CJI notch higher than other judges. It is this vast and untrammeled administrative power of the CJI that can be invoked for institutional integrity, fairness and efficiency, as was done by one of the greatest Chief Justice, M.N. Venkatachalaih. Chief Justice Chandrachud failed to live up to this potential of his administrative power.
As a head of collegium, he failed to ensure all the recommendations made by it are notified by the Government. Modi Government has always acted with alacrity in notifying those names perceived to be close to the BJP but sat over the names of meritorious persons with progressive outlook, and Collegium under the stewardship of Chief Justice Chandrachud buckled. A couple of instances, by way of illustration, amply corroborate this. The bench of senior-most puisine judge, Sanjay Kishan Kaul was seized with the issue of non-clearance of names suggested by Chief Justice Chandrachud collegium in the judicial side. On one occasion, the case was deleted in the last moment. That made Advocate, Prashant Bhushan furious, who threatened to lodge the complaint against the Registrar of the Court before the Chief Justice to which Justice Kaul rightly responded by saying that the Registrar could not have the temerity to drop the matter from my court, implying thereby that it was done at the behest of Chief Justice Chandrachud.
On yet another occasion, when the collegium was scheduled to meet after court hours, Chief Justice Chandrachud sat in his Court till 6.00 p.m. with a sole view and calculation to frustrate the sitting of his own collegium. Whether this is a sign of judicial timidity or judicial collaboration, it is hazardous to make a guess. Be that as it may, all these inactions, or timidity, or collaboration emboldened an arrogant and majoritarian Modi Government to defy the recommendation of the collegium as per its convenience and liking. It is this failure of Chief Justice Chandrachud that has damaged the institutional credibility by impairing the independence of judiciary. The consequences were calamitous, as a meritorious person could not be elevated. Thus, two fundamental pillars of the Constitution – independence of judiciary and secularism have undergone erosion during the stewardship of Chief Justice Chandrachud.
No Chief Justice of India, after Chief Justice A.N. Ray, was condemned so widely as Chief Justice Chandrachud has been. Even the Chief Justices against whom charges of corruption was imputed, like Chief Justice Y.K. Sabharwal and Chief Justice Balakrishnan were spared from the vehemence and virulence of criticism possibly because the fundamental features of the Constitution were not damaged by their alleged act of corruption.
It is a matter of great tragedy that a judge endowed with great scholarship has retired by courting the controversy which can only sully his record as a Chief Justice. This will have very fateful implications for the credibility of the Indian judiciary.
(Vijay Kumar, Senior Advocate, Supreme Court and Author of a recent book The Theory Of Basic Structure: Saviour of The Constitution And Democracy)