When going got tough, CJI Chandrachud faltered
A legacy is determined by what we leave behind, what we were when we arrived, what we did well, where we failed and where we stand on the ultimate measuring scale by which judges are weighed. It’s on the day of retirement that judges are judged, having spent many years of their life judging us.
Where do the chips fall for Dhananjaya Yeshwant Chandrachud, the 50th Chief Justice of India (CJI)? He came in on a high crest of expectation, given his intellectual calibre, near-stellar record of judgments and carrying the legacy of family. Preceding him was a line-up of mostly disappointing CJIs; this gave him the benefit of comparison but also added to the expectations. It was as if he had to rectify a decade of slippage.
He delivered across a range of issues concerning individual and human rights. He recognised the right to live free from the effects of climate change as a fundamental right. He also delivered judgments on the rights of persons with disabilities, reproductive rights and the right to abortion, as well as striking down provisions of Prison Manuals of several states which assigned jobs to prisoners on the basis of caste. He overruled the broadcast ban on MediaOne and rejected a vague notion of “national security concerns” as a ground to violate freedom of speech and freedom of the press. He limited the state’s power to take over private property, and on his last day as a judge of the court, denounced bulldozer justice and awarded a compensation of Rs 25 lakh to a victim of state high-handedness. The liberal and progressive side of Chandrachud came through shiningly.
The technological reform side was also on display as he pushed through paperless courts, digitisation and administrative efficiencies. The Indian court system is not just about judging, it’s also about managing a huge bureaucracy. It’s a system used to the old ways, and reform does not come easily, but a seasoned judge like Chandrachud knew where the levers and drivers for change were. So far so good.
It’s when things got tougher that he started to falter. Judicial appointments to the Supreme Court and high courts is an ongoing battleground between the government and the judiciary. The National Judicial Appointments Commission Act, 2015, was struck down, but in its wake came a to-and-fro participatory process between the executive and the judiciary. Wilful delay can stymie matters, as also ill-founded rejections. Here only a strong Chief Justice can get the desired results, and this means strength coupled with the ability to stare down the government. It’s the notable names that matter — S Muralidhar, Saurabh Kirpal, John Sathyan — and on this count, the report card of the ex-CJI does not read well.
Also, in cases concerning the government as contrasted to those concerning individuals, the record is bleak. The decision to uphold the abrogation of Article 370 while leaving the question of the revocation of J&K’s statehood effectively unanswered is a glaring example. So, too, are decisions where he refused to recognise the right to marry for same-sex couples. His decision to send the Gyanvapi mosque case back to the trial court paved the way for allowing an “archaeological survey” of the mosque, even as he made damning oral remarks in the hearings, stating that The Places of Worship Act did not prohibit suits seeking to “ascertain the religious character” of sites — a decision that seemed to go against the spirit of impassioned passages in the Ayodhya verdict heralding the importance of the Act and its necessity to prevent disputes over religious structures.
He also effectively suspended the operation of the Ritu Chhabria judgment, which had held that an individual’s right to default bail could not be defeated by the investigation agency filing an incomplete chargesheet without completing the investigation. Curiously, Justice Chandrachud passed an order that no court should rely on the said judgment in deciding default bail applications, in response to a mention made by the Solicitor General with respect to another case filed by the Enforcement Directorate. This, despite being a vocal champion of personal liberty.
True, electoral bonds were struck down, but the follow-up of disgorging monies from beneficiary political parties didn’t happen. It was virtually all quiet on the judicial review front and government didn’t lose much sleep. So much so that the then CJI made a statement that judges couldn’t be expected to be like Opposition parties. True that, but constitutional dynamics requires the court to be a corrector, a drawer of lines, the reminder of norms and the affirmer of higher values. In the constitutional scheme, the executive and the judiciary are not buddies; they are meant to be at odds with each other, and it’s the business of the court to hold the fort. That sense of constitutional tension was palpably missing.
On display was another feature of CJI Chandrachud — visiting prominent temples, dressed in ochre, giving national overtones to the temple flag (dhwaja). This was followed by a well-publicised photograph of the CJI and the PM performing Ganesha Puja at the former’s residence. It was bound to create controversy, and did raise plenty; and one wonders why this never-before prayerful closeness was demonstrated, and why so publicly broadcast. Images are powerful messages; they convey the essence straight and direct in way that words cannot. Judges live and act by precedents; surely, some thought should have been given that if this became a national practice following the CJI’s example, it would create fuzzy lines in the separation of powers and independence of judiciary doctrine. A judge is a composite creature, you cannot be one type in court and another outside. And the less said the better about bringing the Almighty in the justice dispensation scheme by seeking solutions from a deity.
Overall, the picture is one of who was eminently capable, who performed well on some important parameters but fell short on others. A far better Chief Justice than most we have seen, but the Olympian heights will elude him. Those belong to the likes of CJIs MN Venkatachaliah, SM Sikri and JS Verma, whose cerebral judicial accomplishments were paired with the steel spine of leadership. These heights were within Chandrachud’s grasp, though, but his reach seemed to just that much limited and just that much deflected. Poet Robert Browning said, “A man’s reach should exceed his grasp, or what’s a heaven for?” This judge could have had the dream ride into the sunset; that it eluded him is a pity. For him, and us.
