A Fine Sense of Justice

WHEN THE 50TH Chief Justice of India (CJI) assumed office two years ago in November, there was quiet optimism in the country’s legal and academic circles that judicial depreda­tions—a widely held but never voiced sentiment—were a mat­ter of the past. After all, Dhananjaya Yeshwant Chandrachud was not only impeccably liberal but was probably one of the most well-read judges to reach that high office.

By last week, when Chandrachud demitted office, that posi­tive characterisation had turned into more dour assessments of his tenure. In Op-eds, long-form stories and in public gather­ings, the former CJI was criticised for, among other things, being insufficiently liberal. In this age and time, when Narendra Modi has been prime minister for more than a decade, there is nothing more abhorrent to this class of critics than a CJI being insufficiently antagonistic to the executive. All the assessments of Chandrachud’s career in the top judicial position, at least until now, are tarred by this hostile sentiment.

There is nothing new in judges of the Supreme Court and CJIs being subjected to criticism. In the period between August 2017—when Justice Dipak Misra became CJI—and April 2021—when the tenure of CJI SA Bobde ended—all CJIs were criticised for one alleged fault or another. Misra was criticised for his allegedly wanton exercise of power as Master of the Roster, his authority to constitute benches hear­ing various cases. In January 2018, four of Justice Misra’s peers held an unprecedented press conference and criticised him. This was an occasion for celebration in India’s liberal circles and supposedly the comeuppance of a CJI who was “more executive minded than the executive.” It was declared to be a warning of sorts to judges: come close to the executive and you know what awaits you. It is another matter that the same set of critics turned against the next CJI whom they had welcomed.

Until this point, Chandrachud was just another judge of the apex court; he was well-regarded for his liberal positions in judgments like Puttaswamy (2017) on the right to privacy and Navtej Singh Johar (2018) that decriminalised homosexuality among other cases. The first signs of unease among liberals arose in the Ayodhya judgment that was deliv­ered when Ranjan Gogoi was the CJI. That judgment, delivered November 2019, was speculated to have been authored by Chandrachud. It was an unusual judgment in that it did not bear the name of individual judges or the name of the judge/judges who wrote the majority verdict or dissenting opinions. It was a unanimous verdict. Given how vexed and politically charged the case was, it was important for the apex court not to leave any doubt on the issue. Dissenting opinions would have fuelled speculation. It is another matter that the dissenting opinions would have been feted and celebrated by New Delhi’s liberal class. The court did not give them that opportunity.

Chandrachud was not only impeccably liberal but was probably one of the most well-read judges to reach that high office. When Chandrachud demitted office, that positive characterisation had turned into more dour assessments of his tenure. In Op-eds, long-form stories and in public gatherings, the former CJI was criticised for, among other things, being insufficiently liberal

Share this on

The judgment, however, set a precedent for a far more mo­mentous and important verdict. This was on the clutch of cases around the abrogation of Article 370 that was delivered on De­cember 11, 2023, when Chandrachud was CJI. This verdict, with three separate but concurring orders, resembled the Ayodhya judgment in one important way: it was unanimous. Chandrachud wrote the key opinion and clinically dismantled a myth that had been propagated for 73 years: that Article 370 could not be abrogated and was a permanent feature of the Con­stitution. Much of this mythmaking rested on a proviso in that article. This was the proviso to Section 3 of the article that said the President of India could not issue a notification that the article had ceased to operate without securing the recommendation of the Constituent Assembly of Jammu & Kashmir (J&K). That Assembly had ceased to exist in January 1957, in ef­fect, making Article 370 a permanent feature of the Constitution.

In his judgment, Chandrachud said this was an incorrect reading of Article 370 and when the Con­stituent Assembly of J&K ceased to exist, it was the proviso to Article 370(3) that disappeared and not the President’s power to effect cessation of the article. Similarly, on the question of “sovereignty” of J&K, he took note of a procla­mation of November 25, 1949, issued by the then ruler of the state ratifying the Constitution of India. This, Chandrachud interpreted, extended the cover of the Constitution to the erstwhile province.

Predictably, none of this went well with liberal legal opinion. The doyen of the profession, the late Fali Nariman, captured the sentiment when he said, “On reading the exhaustive judgment by the five-judge bench, my regret has been that there was no dissent.”

Here lies the secret to liberal politics in India: dissent in the service of discrediting anything that veers away from what it deems acceptable. Another, cruder, version of this claim was that Modi—and conservative politics, in general—could not stand a Muslim-majority province having its day in the sun, something that was enshrined in the Constitution by “asym­metric federalism” that gave J&K “autonomy.”

The trouble for Chandrachud—never mind the scores of liberal opinions and other judgments that went against the government—was that he fell foul to the liberal dictum that the Supreme Court was to serve as a “counter-majoritarian” institu­tion. Under his tenure as CJI, the court aggressively protected civil liberties, especially when it came to bail matters. Except for cases involving the Unlawful Activities (Prevention) Act, 1967, and matters where the writ of the government was challenged directly, bail was the norm and, jail, the exception. This was true even in cases where politicians had indulged in corruption and, if released on bail, could subvert the course of an investigation. Even laws that were designed to prevent this kind of perversion of justice, such as Prevention of Money Laundering Act, 2002, were prised open and bail became considerably easier. All this was to no avail. Because the Chandrachud court was insufficient­ly hostile to the government of the day, it failed the liberalism test.

What bruised the liberal opinion most, however, was not any substantive decision of the Chandrachud court but a sym­bolic act: the participation of the prime minister in prayers at the CJI’s home. This was in September this year on the occasion of Ganapati puja. This led to a furore and, once again, liberal opinion made scurrilous allegations to the effect that the CJI had somehow “compromised” his position by interacting with the prime minister in this manner. At a public event, close to the end of his tenure, the CJI explained that such a meeting does not imply any sort of “compromise” on the part of a judge or any kind of exertion of pressure by the executive. In a way, such claims and fears are childish; but liberal opinion in India has by now reduced itself to a childish bawl.

In a way this was an important and much-needed signal on part of the prime minister and the CJI: that key pillars of the state are not locked in antagonism and this certainly holds true for the persons who man these institutions. This messaging came at a time when the world is in flux and the danger of external events adversely affecting India is very real. It was timed well. Chandrachud will be remembered for his careful reasoning, so­ber verdicts and, above all, safekeeping the interests of justice.

About The Author

Siddharth Singh

•