The image of Prime Minister Narendra Modi visiting the residence of Chief Justice of India D.Y. Chandrachud to join Ganesh Chaturthi celebrations is likely to remind us about the perils of Executive-Judiciary bonhomie for a long time to come.
The image, which went viral on social media on September 12, outraged the legal community. As CJI Chandrachud retires on November 10, the image sparked speculation about whether the outgoing CJI was already in talks with the government for a post-retirement sinecure, potentially compromising the principle of separation of powers—a cornerstone of the judiciary and a key feature of the basic structure of the Constitution.
For admirers of the CJI and his record in office, the image was a huge disappointment. His record, undoubtedly, was mixed. He was part of the five-judge Ayodhya bench that unanimously legitimised handing over the disputed land in Ayodhya to Hindus to build a temple for Lord Ram. However, the judgment in the Babri Masjid case—which many believe was authored by Justice Chandrachud (as he then was), though delivered without divulging the author’s name—defended the Places of Worship Act, 1991. This Act aims to preserve the religious character of places of worship as they were on Independence Day, August 15, 1947.
CJI Chandrachud was also part of benches that delivered judgments against the Union government. The Supreme Court’s March judgment in the Electoral Bonds case, which held the Electoral Bonds Scheme unconstitutional for violating voters’ right to information, is one such example. However, a two-judge bench he presided over in August rejected pleas seeking a court-monitored investigation into allegations of quid pro quo in the purchase of electoral bonds for contract awards, deeming it a “roving inquiry”. He also authored dissents in the Aadhaar and Bhima Koregaon cases, which favoured the government.
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CJI Chandrachud’s pro-liberal judgments and observations in Court endeared him to the liberal class, who hailed him for decisions that set him apart from his predecessors, suggesting a significant tilt towards free speech, rights of the marginalised, and substantive equality.
However, the image of Prime Minister Modi visiting the CJI’s residence cast a shadow on his otherwise excellent judicial career. Indira Jaising, senior advocate and well-known civil liberties advocate, commented on social media: “Chief Justice of India has compromised the separation of powers between the Executive and Judiciary. Lost all confidence in the independence of the CJI. The SCBA must condemn this publicly displayed compromise of Independence of the CJI from the Executive.” Jaising tagged her post to Kapil Sibal, senior advocate and president of the Supreme Court Bar Association (SCBA).
Others compared CJI Chandrachud’s conduct to that of Justice P.N. Bhagwati, a veteran from the past. Justice Bhagwati, then the Supreme Court’s second senior-most judge, wrote a 1,200-word letter to Prime Minister Indira Gandhi in 1980, after her return to power in the general elections. In his letter, Justice Bhagwati offered his heartiest congratulations on Indira Gandhi’s resounding victory and her triumphant return as Prime Minister. “It is a most remarkable achievement of which you, your friends and well-wishers can be justly proud. It is a great honour to be the prime minister of a country like India,” he wrote in his private letter, which was later leaked to the media.
Justice P. N. Bhagwati in New Delhi in January 1982. | Photo Credit: N SRINIVASAN
Justice V.D. Tulzapurkar, then Justice Bhagwati’s colleague in the Supreme Court, made a critical reference to the letter at a public function organised by the Indian Law Institute, without explicitly mentioning Justice Bhagwati. He described the conduct as a very disturbing trend, damaging the image of the judiciary, and added: “If judges start sending bouquets or congratulatory letters to a political leader on his political victory, eulogising him on assumption of high office in adulatory terms, the people’s confidence in the judiciary will be shaken.”
But Justice Bhagwati’s letter was also not unprecedented. On July 3, 1953, M.C. Chagla, Chief Justice of the Bombay High Court, wrote to then Prime Minister Jawaharlal Nehru, stating that the latter had given India an international status which countries more seasoned in diplomacy might well envy.
Justice Chagla later served as the Indian ambassador to the US from 1958 to 1961, and as Indian High Commissioner in the UK from April 1962 to September 1963. He also held positions as Union Minister for Education from 1963 to 1966, and as Minister for External Affairs from November 1966 to September 1967.
Controversial moves
In recent times, especially since Modi became Prime Minister in 2014, instances of judges openly displaying their proximity to those in power have increased. In 2018, Justice Sudip Ranjan Sen of the Meghalaya High Court stated in one of his judgments that only the Modi government would understand the gravity and do the needful to support the “national interest” to avoid India “becoming another Islamic country.”
In the same year, Justice M.R. Shah, then Chief Justice of the Patna High Court (who was later elevated to the Supreme Court), hailed Modi as a “hero” and described him as “the most popular, loved, vibrant and visionary leader” on another occasion.
In February 2020, Justice Arun Mishra of the Supreme Court described Modi as “a versatile genius who thinks globally and acts locally” during the inaugural ceremony of the International Judicial Conference, organised by the Supreme Court.
Justice Arun Mishra was subsequently appointed as the Chairperson of the National Human Rights Commission (NHRC) soon after his retirement from the Supreme Court. He retired as the Chairperson of NHRC on June 1 this year. The post remains vacant since then, although the government could have filled it by selecting one of the many eligible Judges who recently retired from the Supreme Court.
Former Chief Justice of India, Ranjan Gogoi, also displayed his proximity to Modi during public events without hesitation. Gogoi, who had delivered several pro-Government verdicts during his tenure, became a nominated member of the Rajya Sabha after his retirement.
But do past precedents justify the present actions by the CJI, which many consider egregious?
The Supreme Court’s website reproduces the ‘Restatement of Values of Judicial Life’, as adopted by the Full Court Meeting of the Supreme Court on May 7, 1997. Paragraph 6 of this Restatement states: “A Judge should practice a degree of aloofness consistent with the dignity of his office.”
Prime Minister Narendra Modi interacts with Chief Justice DY Chandrachud during the inaugural event of the 2-day National Conference of District Judiciary, at Bharat Mandapam, in New Delhi on August 31. | Photo Credit: ANI
Paragraph 16 is also worth quoting: “Every Judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held.”
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The Restatement, which has just 16 paragraphs, concludes: “These are only the ‘Restatement of the Values of Judicial Life’ and are not meant to be exhaustive but illustrative of what is expected of a Judge.”
Academic Shubhankar Dam highlighted in his recent research paper, “Active After Sunset: The Politics of Judicial Retirements in India,” that the Supreme Court, not specific judges, benches or decisions, is institutionally corrupt. Dam wrote that the system of post-retirement jobs cycles like an economy of influence, weakening the institution’s effectiveness, especially its capacity for impartial adjudication in matters involving governments.
The PM’s visit to the CJI’s residence, albeit to participate in a private religious event, has unfortunately lent credence to the view that it may be preparatory for his post-retirement sinecure without a cooling-off period.
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.
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