Outgoing CJI Chandrachud at Adda: ‘It’s the diversity of the nation which protects the basic structure of the Constitution’

On the court’s role in protecting embattled spaces for conversation

As a constitutional court, our function is not just to decide cases, but to promote a democratic dialogue between different segments of society. And from that perspective, for instance, say in the case of the same-sex marriage equality case, we didn’t give queer couples the right to marry. Or on the question as to whether they are entitled to a civil union. I was in a minority where I said that same-sex couples should have the right to form a civil union. Three of our colleagues took the other view. But nonetheless, opening up these issues for public debate, for critique, and criticism, is important because that’s when we ensure that society starts thinking about these issues and responding to what the court is saying.

On courts using technology, opening themselves up

Speaking about the Supreme Court, I think Covid itself was a game changer. Because if we didn’t progress to hybrid hearings, video conferencing solutions, I don’t think we would have been able to function. What opening up courts has done is that the dialogue in the court is not just confined now to say the 50 or 100 or 200 people who are present in the court, but the dialogue reaches out across the nation and even globally. It’s reflective of the soft power of our nation that we engage in these serious dialogues. Not too many countries in the world can say that they have the kind of open critique, dialogue and discussion that goes on in our courts.

On controversy over praying with PM, asking for deity’s direction before Ayodhya judgment

On the fact that the PM visited my home for a purely private event, I do feel that there is absolutely nothing wrong. For the simple reason that these are continuing meetings between the judiciary and the executive even at a social level. We meet in the Rashtrapati Bhavan, we meet on the occasion of January 26, on August 15, when an incoming Chief Justice is taking office, when an outgoing Chief Justice is retiring. These conversations are not about the cases which we decide, but about life and society in general. There has to be this sense of maturity in the political system to understand this and to trust our judges.

Your second question: I think that’s again a problem of social media. I visited my village and one of the questions which I was asked was that in the arena of conflict which you find in your courts, how do you stay calm? I said everyone has their own mantra. I spend an hour every morning in reflection, That is what I meant when I said that I sit before a deity. I am not defensive about the fact that I am a person of faith. I have my own faith. Equally, I respect every other faith. My being a person who professes a particular faith has nothing to do with how I will treat people of different faiths who come in conflict and come seeking justice before us. We must accept that our judiciary has a sense of maturity. Members of the political executive visit on the occasion of marriages and events. Likewise, we are invited. The fact of the matter is, deals are never cut like this. So, please trust us. The ultimate guarantee of our good behaviour lies in the written word.

On pressure on “people’s court” to take on the role of the Opposition, whether June 4 verdict has eased it

The court’s work and role is not that of a political Opposition.  Particularly with the advent of social media, you see the growth of interest groups, pressure groups, which are trying to use electronic media to put pressure on the court to arrive at certain outcomes. When you decide on electoral bonds, you are independent, but if a verdict goes in favour of the government, then you are not independent — that’s not my definition of independence. On whether the verdict of June 4 has made a difference, the atmospherics may suggest that these things make a difference. I don’t believe so. We decided the electoral bonds case even before the June 4 verdict, right? So these are not issues which really affect judges.

On courts not granting bail in several cases including Umar Khalid, Stan Swamy, GN Saibaba

Very often, what happens is that in the media, a particular case assumes prominence. And then the court is either criticised or critiqued on the basis of one particular case. After I took over as Chief Justice on November 9, 2022, I thought that we must prioritise bail because bail fundamentally impacts upon personal liberty. Between November 9, 2022 and November 1, 2024, 21,000 bail cases were filed in the Supreme Court. During that period, 21,358 bail cases have been disposed of. Speaking for myself, I’ve always said that I have granted bail from A to Z, from Arnab to Zubair. Very often it is believed that the Supreme Court has lobbed the case back into the lap of the trial court. When the Supreme Court does that, it does that for the simple reason that there has to be an ordered procedure for accessing bail. I do have concerns that the trial courts are reluctant to grant bail.

On judicial appointments, executive veto

During the time that I took over, 18 judges of the Supreme Court have been appointed. Forty out of 42 chief justices that I have made recommendations for, together with my collegium, too, are in process. A total of 137 out of 164 appointments that we proposed for appointment as judges of the High Court have been appointed and they are in saddle. And 65 cases were cases which we, as the collegium in the Supreme Court, rejected or admitted. Yes, there are multiple stakeholders in the appointment process. You have the High Court collegiums. You have the governments in the states, namely the chief minister and the governor. You have the Supreme Court collegium. You have the government of India, which is going to evaluate all the inputs which are brought in the file to them. And of course, the file then goes to the President for clearance. Now the veto is not a veto which is exercised only by the government. The veto is exercised by the collegium as well. No appointment can go through unless we clear it.

Justice DY Chandrachud, Chief Justice of India, with the guests at Express Adda

On the basic structure of the Constitution and the perceived threat to it

The more I’ve looked at the social fabric of the nation and at the diversity of the nation —  the diversity is not something which is amenable to change by law or by Constitution. It is a given. The diversity in terms of regions, religion, language, in terms of cultures, which is itself a source of the multiple identities we have within the rubric of the overall nation. We are all citizens of the nation, but each of us carries different identities. This diversity to my mind is the most stabilising force. You would expect that diversity would be a factor which would detract from stability. But looking at the history of the nation over the last 75 years, it is that diversity which has propounded the stability of the nation. And it’s this diversity which protects the basic structure. Every time you look at the flux in the nation in terms of the evolution of the social fabric, you realise why the basic structure has survived. It has not survived only because of the strength of the constitutional concept. It has survived because of what society is — so deeply diverse, inclusive. And these forces of inclusion, they are so powerful, particularly in our society, that they bring us together and ensure that fundamental democratic values, which are what the basic structure doctrine is about, are preserved. Therefore, I have cause for optimism for the future.

On lack of women in judiciary, whether there should be reservation

There are more women joining the district judiciary. I’ve been part of collegiums where women judges have been appointed. The way the system works is this, that when we make appointments to the Supreme Court from the High Courts, you look at seniority and credentials of that person including the need for diversity within the system. If a woman judge is at number 12 in a high court, you don’t appoint that judge to the Supreme Court merely because that judge is a woman. There are 11 people ahead of her. Do you necessarily then ignore the claims of judges who are more senior merely to have a woman judge?

In the higher judiciary, that is the High Courts and the Supreme Court, you do not have reservations. But a conscious effort is made to have greater diversity within the system. And I know that chief justices bear this in mind while making recommendations for appointment.

QUICK QUESTIONS WITH ANANT GOENKA

You’ve always been an advocate of transparency. Do you like the idea of newspapers and news organisations endorsing politicians to be leaders of state?

The reason why you respect a newspaper is because of the degree of objectivity which you believe you will have every morning when you pick up that newspaper. Maybe I’m old school, but I believe that that degree of objectivity of a newspaper is what ultimately sustains the confidence of the reader in the newspaper.

If you were Ruth Bader Ginsburg (Former Associate Justice of the US Supreme Court), would you have resigned earlier?

Well, we don’t have such illusions because we are told by the Constitution when we have to go home, namely at 65 in the Supreme Court and at 62 in the High Courts. There is this scholarly debate and of course even amongst people who are great fans of Ruth Bader Ginsburg, which I am, on whether she should have perhaps resigned a little earlier. Well, sometimes you believe in your own eternity.

Do you like the idea of a judge for life or do you prefer there being a retirement age?

I’m a proponent of the fact that there should be a retirement age because no wing of the nation state in a democracy should have such an overbearing importance that you can you know continually affect the future of society.

And would you be a proponent to increase the age of retirement for judges in India?

Ask me that question after I retire.

Is there any one case that you regret not hearing before retirement?

There’s this beautiful lecture by Randy Pausch, an American professor, who was detected with cancer. He said: ‘if this be the last day of my life, have I left the world in a better place’? And you can’t certainly change the cards you are dealt with, but you can certainly change the way you play the cards. So yes, it’s an unfinished task. And institutions are never dependent on a single individual.

Your father retired in 1985. You’re retiring in 2024. The one thing that’s changed about Indian judiciary for the better and the one thing that’s changed for the worse?

I’ll begin with what has changed for the worse — the volume of cases, the backlog. Something which has changed for, I don’t know whether for the better or the worse, is the complexity of the litigation which comes to the court.

The one do and the one don’t you’d like to leave behind for your successor?

I take myself not too seriously. I take my work very seriously.

The one thing you view your successor Sanjiv Khanna’s greatest strength as  a judge.

His degree of objectivity. He’s a calm human being and he has the ability to smile even in the face of the serious conflict which goes on in the court.

When you took over, we saw photographs of you in your house and we learned that you were a cat person. So what is that one most misunderstood trait of the house cat?

It’s that they’re not loving, which is sort of untrue. Cats are as loving as pet dogs, but they have their own way of expressing love.

You have to invite one guest for dinner. Who would you invite?

I’d love to have someone from the world of music, a guest from the world of literature, one from the world of history. I’d really love to just sit down with people who work for me in the house.

So, what’s next for Justice Chandrachud?

I have not made any plans. To be honest judging is an exhausting process. So I just want to give myself a little time to reflect. Let things soak in. I just feel that let life throw up some ideas, talk to friends, see what comes my way in terms of opportunities to read, to teach, to write. I’d love to do things which I would have loved to do, but didn’t have time to as a judge.

When you look at the next generation of judges, what gives you confidence and what is a cause of concern?

What’s giving me a sense of confidence is that in many states across India, over 50 percent, in some states 60 percent, in some 70 percent of the new recruits are women. And that’s a sign of changing India.

…Yes, with the high incomes which lawyers earn, increasingly fewer and fewer lawyers are willing to become judges of the high court. That is a matter of concern.

AUDIENCE QUESTIONS

Rashmi Saluja, Executive Chairperson, Religare

Rashmi Saluja
Executive Chairperson, Religare

When you were just joining the judiciary, What WAS the most inspirational judgment for you ?

I remember I was sitting as a vacation judge. And you get all kinds of cases there. There was this play which was going to be staged, at 9 pm in Mumbai. And the play was banned by the government. I had to take a split-second decision. I wrote an order lifting the ban, saying that this would be violation of the fundamental values of free speech and expression. I didn’t have too much time to decide, I either had to say yes or no. I allowed that play to be staged. That was a standalone and something which has really stayed in my memory.

Dewa Paljor, Advocate and Founding Partner, Satyarakshya

Dewa Paljor
Advocate and Founding Partner, Satyarakshya

What is the best advice that you have received, something that has helped you move ahead professionally?

It was from a senior colleague. A judgment that I had written was a fairly long one. The senior judge called me to his chamber and said, what do you want to be known as? Is it that you disposed of 50,000 cases at the end of your tenure or is it that you made a difference to society? He said, I’m not going to give you the answer to that. It is for you to decide. But this is a call which you have to take. Do you want to be known as a judge who dealt with many cases, disposed of cases, has this big statistic against your name, or do you want to be known as someone who tried to alter the face of injustice and transformed the social fabric? He didn’t give me an answer, but that question has stayed with me until this day.

Sudhakar Rao, Director Branding ICFAI Group

Sudhakar Rao
Director Branding ICFAI Group

Recently, there was a video of a high court judge reprimanding an IAS officer. He was in normal clothes like most of us. But the comment was very harsh. In the judicial system, does anyone look at such things?

Incidentally, I saw that video myself. I was appalled. There is a protocol. If a police officer or an Army officer comes to court, not in their personal capacity, they always come in uniform. But what is the uniform for an IAS officer? You have to be dressed appropriately. You wouldn’t turn up in court as in shorts, right? I’ve had people turn up in court in all kinds of funny attire. But, overall, I try not to pull people up. I feel that the system sort of finds its own water.