D Y Chandrachud retired as Chief Justice of India last week. His normative labours in over eight years at the Supreme Court include, as of November 6, 612 judgments across 1,274 Benches, as per Supreme Court Observer (SCO). According to SCO data, the highest number of his judgments are in service (16 per cent), criminal (15 per cent) and constitutional and civil matters ( 10 per cent each). This is a proud record, brimming with new concepts and ideas. It is doubtful that all critics of his tenure have read this corpus. The CJI who publicly wondered about his legacy has left with a bouquet of brickbats from retired justices, senior lawyers, and both the print and social media.
Most of the critique has been directed at his off-bench performances, with some ungenerously suggesting that these impacted his judicial decisions. Such criticism overlooks the fact that the constitutional conception of judicial independence is always, as I have previously described, “independence within dependence” — a relative, not an absolute, independence. The number of justices, the terms of service, their age of superannuation and pensions are determined by Parliament. And the Supreme Court itself has conceded in the NJAC decision that a collegium system means “limited primacy of both the President and CJI”.
At the Express Adda last week, the former CJI insisted that the judiciary and executive are not “antagonists” who would desist from “reasoned dialogue.” But he also said (something that CJI J S Khehar had darkly hinted at) that social media “pressure groups” and “interest groups” often cry foul if a matter is not decided as per their interests.
However, “robust consultation” may be creative only if boundaries to the bonhomie between the political executive and the judiciary were known to the people. We have the former CJI’s word that the dialogue is purely on the “administrative side” and never involves “the cases we decide”. We also have his exhortation to “trust” judges. However, asserting the people’s right to know the grounds of deadlocks, justly affirmed in the electoral bonds case, would have helped!
We have also learned that the former CJI has always been “a person of faith”— this is unproblematic since the fundamental right to the freedom of conscience and religion is guaranteed by constitutional jurisprudence. Enough has been said about the release of a live recording of the puja where the CJI was joined by the Prime Minister in a public display of faith. However, I maintain that it is the judicial duty of all serving Supreme Court justices to follow the Bommai discourse which brilliantly distinguishes between constitutional and political secularism.
Additionally, a certain degree of judicial aloofness is expected in judicial conviviality with the executive. To quote myself immodestly: “The distance between Tilak Marg (where the SCI sits) and Shastri Bhawan (where the law minister is located) is geographically very small but constitutionally very vast.”
However, constitutional judicial review is destined to always meet with unworthy and ungenerous efforts at denigration and the attribution of a specific political and “careerist” motive to justices. This is flawed for at least three reasons. First, career aspirations are recognised everywhere as a good thing, provided they are based on the seniority-cum- merit principle. Second, judicial independence requires ulterior motives to be proved and this occurs only in the rarest of rare cases, while the grapevine grows in which rumours become news and the folklore about judicial venality and corruption grows. A high priority for adjudicative leadership is to revive the Judicial Standards and Accountability Bill of 2010. Third, there are no single-judge benches in the SC, unlike the high courts, and therefore any imputation on the integrity of a CJI may also be implicitly extended to his companion justices.
Constitutional courts do have their own politics of interpretation — a disinterested constitutional affair from which they have nothing to gain by way of personal benefit, in contrast to competitive party politics which must benefit from decisions (as shown in my book, The Indian Supreme Court and Politics, 1960).
A high priority of robust dialogue between the CJI and political executive should be to subject post-superannuation assignments to a two-year cooling off period, as suggested by Arun Jaitley. No CJI has done this, but a legacy-seeking CJI ought to have done so with determination and datafication: We lack data on how many justices have declined such assignments and how many have been actually invited. Nor, in this context, is the specific form of judicial oath (‘Constitution at the centre’, IE, July 5) ever considered!
Just before I perforce conclude, I will mention two other matters. The CJI traditionally enjoys vast administrative powers as Master of the Roster. Even the so-called revolt of the four senior justices (on January 12, 2018) did not question this privilege of the CJI. But the problem remains: How to avoid “manifest arbitrariness” in the exercise of the CJI’s prerogatives?
Even if one may defer the hearing of “politically sensitive” matters, can this ever be done even when these matters directly affect the freedom of many incarcerated under mere suspicion? Are the added unusual powers — of “recalling” a decision duly rendered by a competent Bench and to “reconsider” a prior binding decision — always just and fair? Should not such “judicial evasion” be avoided when core human rights are at stake?
Finally, there is the matter of distressing denunciation of prior precedents. The CJI made some harsh remarks against Justices Krishna Iyer and O Chinnappa Reddy, on whether the state is obliged to acquire and distribute individual “private” property for common good, under Article 39 (b) of the Constitution. He stated that the two justices were not merely following a particular ideology but were engaged in “scuttling” the constitutional vision! Justices B V Nagarathna and Sudhanshu Dhulia called this and other remarks “harsh” and “unwarranted”.
The import of the word “socialist” in the preamble of the Constitution is at stake; to reduce past judicial decisions to mere regime-favouring is unworthy. Moreover, it is anachronistic to read the past as prelude to ideologies of de-constitutionalisation, de-politicisation, de-democratisation and de-juridification of major issues of governance and development. One hopes that sober reflections on the future of constitutionalism will flow now from the active pen of Dr Chandrachud.
The writer is professor of law, University of Warwick, and former vice chancellor of Universities of South Gujarat and Delhi
