Much has been written about the tenure of the outgoing Chief Justice of India (CJI), D.Y. Chandrachud, who is superannuating from office on November 10. His tenure has come under critical review by observers mainly because of his omissions and commissions as the Master of the Roster, which resulted in several accused seeking bail failing to get timely relief from the Supreme Court.
As a judge, his recent admission that he decided the Babri Masjid dispute in favour of Hindus, after he prayed to god to find a solution has raised critical questions about the fairness of the judgment itself.
His conduct in inviting Prime Minister Narendra Modi, to his residence to participate in Ganesh Puja celebrations, in public view, has already invited flak from his former colleagues in the Court and from the Bar.
Also Read | Does the CJI’s Ganesh Chaturthi celebration with Modi cross a line?
His rumination in public recently of how history will judge him once he leaves office has, therefore, led to brutal public excoriation of his tenure in the social media. No other CJI, in recent memory, has fallen in public esteem so much towards the end of his tenure after raising huge public expectations before and after entering office.
So, what went wrong?
In his memoir, Anomalies in Law & Justice: Writings related to Law & Justice, former Supreme Court judge, Justice R.V. Raveendran writes that judicial independence refers to the independence of the judiciary as an institution as also the independence of the judges as individuals in performing their judicial functions. Clarifying further, Justice Raveendran explains independence of individual judges as freedom from any influence or pressure and freedom from any interference from the executive or legislature in the judicial process.
Justice Vivian Bose put it succinctly in a judgment he authored in 1956: “The heart and core of a democracy lies in the judicial process, and that means independent and fearless Judges free from executive control brought up in judicial traditions and trained to judicial ways of working and thinking.”
The Supreme Court reiterated this principle in Kartar Singh v State of Punjab (1994): “Independence and integrity of the judiciary in a democratic system of Government is of the highest importance and interest not only to judges but to the people at large who seek judicial redress against perceived legal injury or executive excesses… Judicial independence means total liberty of the presiding judge to try, hear and decide the cases that have come before him according to the set procedure and decide the cases and give binding decision on merits without fear or favour, affection or ill-will.”
Justice Sanjiv Khanna in New Delhi. File Photo. | Photo Credit: ANI
It is trite to suggest that decisions should be based on the merits of the case and not on the judge’s emotions and preferences. Judicial independence does not mean, according to Justice Raveendran, that a Judge can exercise his discretion as per his whims and fancies. Even when a judge is exercising “discretion” for which there are no statutory guidelines or precedents, he is required to act justly and fairly and not arbitrarily.
One may quibble with Justice Chandrachud, whether the Ayodhya dispute was indeed a hard case that defied solution, but there can be no debate that he should have rendered justice in accordance with law, rather than his convictions or beliefs or what he considers as just.
Justice Benjamin N. Cardozo, in his book, The Nature of Judicial Process, observed thus: “The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of fairness and justice. He has to draw his inspiration from well-consecrated principles. He is not to yield to spasmodic sentiments, to vague and unregulated benevolence.”
The Supreme Court in Union of India v Madras Bar Association (2010) amplified this principle further: “Independence is not the freedom of judges to do what they like. It is the independence of judicial thought. It is the freedom from interference and pressures which provides the judicial atmosphere where he can work with absolute commitment to the cause of justice and constitutional values. It is also the discipline in life, habits and outlook that enables a Judge to be impartial.”
While defending his conduct in inviting the Prime Minister to his residence to take part in Ganesh puja, CJI Chandrachud has said that there is enough maturity among judges of constitutional courts and the heads of the executive to firmly keep aside judicial matters out of the purview of any discussion. He also spoke against inferences about deals being cracked when the judiciary and executive engaged with each other ostensibly to discuss infrastructure issues.
Also Read | How the humble saffron became a divisive political tool
The CJI’s compliment to himself about his “maturity” to avoid discussing pending judicial matters while meeting the head of the government at a private function in his residence is both naive and bereft of judicial humility. It is naive because he believes that his so-called maturity to avoid discussing pending judicial matters or post-retirement sinecures while meeting those in power is a universal quality among judges at all levels.
It is bereft of judicial humility because he seems to deny several recent instances of judges curry-favouring those in power, only to be nominated to Rajya Sabha or Raj Bhavans of States soon after their retirement, without even a cooling-off period in-between.
CJI Chandrachud’s own assessment of his tenure apparently misses the point that as expectations from judges are high, any act perceived as improper or misbehaviour of a judge is likely to be magnified and distorted, thereby reducing the faith and trust of the common man in the judiciary. A future historian of the Supreme Court, therefore, is likely to say that as CJI, he was not doubly careful in his conduct and behaviour so as to maintain the high reputation of the judiciary.
John Marshall, the fourth Chief Justice of the United States (1801-1835), said: “The power of judiciary lies, not in deciding cases, not in imposing sentences, not in punishing contempt, but in the trust, faith and confidence of the common man” (quoted in Supreme Court’s judgment in Rajesh Kumar Singh v High Court of Judicature of Madhya Pradesh (2007).
It will not be an exaggeration to say that while the trust, faith and confidence of the common man in our judiciary continues to be intact, it is, in the eyes of many, shaken because of the conduct of the outgoing CJI who has not been successful in avoiding improper motives being attributed to him while in office.
Redesigning Lady Justice
The outgoing CJI is credited with commissioning a new emblem and a flag for the Supreme Court, along with a redesigned statue of Lady Justice. The new statue is six feet tall and located in the judges’ library. The statue no longer has the blindfold, and its sword has been replaced with the Constitution.
Both the blindfold and sword being identified as colonial legacies, are the changes pregnant with meanings? Of course, a transformative Constitution such as India’s cannot declare law is blind or deny that justice should be based on Constitutional principles.
But by replacing one symbol with another, are we not told to ignore the substance? Is the Supreme court trying to imitate the government, which recently introduced three new criminal laws to replace the old ones merely to offer an illusion of progress and decolonisation by change of names?
The new law, Bharatiya Nyaya Sanhita, for example, replaces the colonial offence of sedition with a much broader offence to punish anyone who encourages the feelings of separatist activities or endangers sovereignty or unity and integrity of India. Therefore, it is not just the colonial names and symbols that should be of concern. The substance of laws that replaced them suggests continuity rather than change.
The colonial legal regime was already significantly transformed by the 1950 Constitution.
As a scholarly critique of the legal reform points out, the three criminal codes, namely the Indian Penal Code, Criminal Procedure Code and Indian Evidence Act were valid only to the extent that they were consistent with Part III rights. Indeed, Article 372(1) of the Constitution enables continuance of all laws in force immediately before its commencement until altered or repealed or amended by a competent Legislature or authority.
No wonder, the Supreme Court Bar Association has expressed its dismay about the rationale of the symbolic changes introduced by the outgoing CJI unilaterally, without consulting any stakeholders.
V. Venkatesan is an independent legal journalist based in New Delhi. Formerly Senior Associate Editor with Frontline, he has been reporting and commenting on legal issues.
COMMents
SHARE