Justice Madan Lokur, former judge of the Supreme Court and at present a judge of the Supreme Court of Fiji, told Karan Thapar in a recent interview that Justice D.Y. Chandrachud’s term as chief justice of India (CJI) was riddled with ‘serious mistakes’. He spoke of his judgments, his performance on the administrative side, as well as the things he said while occupying the post.
The full text of this interview is below.
Hello and welcome to a special interview for The Wire. Yesterday, the 10th of November, Justice Chandrachud retired after two years as Chief Justice of India. His was an unusually high-profile term in office.
He attracted a lot of attention both within the court and outside of it. But what sort of Chief Justice was he? Did he live up to expectations, or has he disappointed his peers? Today, I shall attempt to assess Justice Chandrachud’s Chief Justiceship with one of the most highly regarded former judges of the Supreme Court and presently a judge of the Supreme Court of Fiji, Justice Madan Justice Lokur. Justice Justice Lokur, yesterday on the 10th of November, Justice Chandrachud retired after serving two years as Chief Justice of India.
There were great expectations of him when he took over. In your eyes, has he lived up to them or has he disappointed you?
Thank you, Karan, for inviting me for this show.
Yes, you’re right. There were a lot of expectations from Chief Justice Chandrachud. And the reason for that is that things were getting out of hand.
Things were happening. Judges were talking in different voices. There was no cohesiveness in the Supreme Court.
Because of the long tenure that Chief Justice Chandrachud was expected to have, two years, there were a lot of expectations that he would bring stability to the functioning of the Supreme Court. To an extent, he did bring the temperature down, so to speak. But I suppose there will always be some difference of views in the courts.
The Chief Justice has a dual function. He is not only there as a judge for deciding cases but is also an administrator.
As a judge, Justice Chandrachud did a good job in the sense that there were a large number of Constitution bench cases that were pending. There still are. But he managed to set up Constitution benches and clear quite a few of them, some of five judges, seven judges, nine judges. To that extent, he did a good job. Within those judgments, there were controversies, which are bound to be there.
As an administrator, I think he did not ensure that the temperature came down. There were issues with the Supreme Court registry, where cases were being listed at the whims of the registry or were not being listed at all. Cases would go from one bench to another, and there was a lot of inconsistency. Lawyers often spoke about it, questioning why their cases were not being listed. Litigants also started voicing concerns.
So, you’re saying as an administrator, he disappointed.
Yes, as an administrator, he disappointed me.
The administration of the court is one of the more important aspects of the Chief Justice’s role. How significant is this disappointment?
There are three key responsibilities: first, as master of the roster, which means the Chief Justice assigns cases to different benches. This is the exclusive jurisdiction of the Chief Justice.
There have been discussions among lawyers questioning how certain types of cases are consistently assigned to particular benches. We faced a similar problem, and if you remember, in January 2018, I was part of a press conference raising concerns about cases going to specific benches. The same issues seem to have resurfaced during his tenure.
The second issue is the management of the registry, where case listing has been a persistent problem. Lawyers have frequently complained about cases not being listed or being listed inconsistently. Judges have even remarked in open court about cases not being listed as directed. For instance, Justice Sanjay Kishan Kaul expressed frustration when a case was supposed to be listed before his bench but wasn’t, stating, “I think things are best left unsaid.”
Just for the information of the audience, this involved a case related to the collegium, with the government asked to respond to certain questions, but the case was not only unlisted
And it hasn’t even come up ever since. It was about the appointment of judges. These are the two things directly connected with the Supreme Court. The third administrative responsibility is to act as the head of the judiciary. Although high courts are independent and not subservient to the Supreme Court, the Chief Justice of India is traditionally seen as the head of the judiciary. I would imagine the Chief Justice should engage with the Chief Justices of high courts, advising them on better court management practices. For example, you’re getting some crazy orders that have been passed by the courts. So look at judicial education, for example, in the district courts so that judges are able to give a balanced view of what is happening.
There have instances where the proceedings in the courts have gone out of hand. You know, so there, as the senior most judge in the country and as a person who is supposed to be the head of the judiciary, I think it would be his duty to guide the chief justices of various high courts and tell them how better to manage their courts and addressing issues like imbalanced judicial education in district courts.
Of the three administrative responsibilities, two lapses in Justice Chandrachud’s case seem deliberate: cases being assigned to specific benches, and the registry either not listing cases or handling them inconsistently. As master of the roster, he personally decides which cases go where. Similarly, as head of the registry, he is responsible for ensuring it functions correctly, which suggests a deliberate choice not to intervene.
When it comes to his relationship with other Chief Justices, it might have been neglect, but it’s unusual for someone of his intellect and awareness to overlook this. It seems likely all three lapses were deliberate choices on his part?
Yes, that’s one way of looking at it. Actually, I don’t know whether it appears. It appears that the Chief Justice says, “Listen, this particular case should go before this bench.” From what I have read in the newspapers, it has happened. The Chief Justice has deliberately said that this case should go before this particular bench, or that this case should be taken out from a particular bench. I give the example of Justice Kaul.
Then you had the instance of the cutting of trees in Delhi—issues of the environment in Delhi. Cases have been taken out from a particular bench. That would be deliberate. The registry doesn’t have the authority to do it on their own, so that would be deliberate. As the head of the registry, the person in charge, the Chief Justice should be aware of this. Even if he does not do it deliberately, he should definitely be aware of it. He should pull up the registry and say, “What are you guys doing?” He seems to have failed to do that.
Do you suspect that some of these deliberate decisions to take away cases were politically motivated?
I don’t know. But taking out the case from Justice Sanjay Krishan Kaul’s bench – recently, I think yesterday or the day before – the Chief Justice made a statement in an interview that he believes the appointment of judges should not be taken up on the judicial side. That’s his personal view. If that is his view, that explains why he took it away from Justice Kaul because that was before him on the judicial side.
Now, you can’t let your personal views dominate the listing of cases. The least that could have been done in a situation like this—and let me tell you, the case before Justice Kaul was not the first time that a case like this had come up before a judge or bench of the Supreme Court. It’s been there for quite some time. In fact, even when Justice Thakur was Chief Justice of India, he had mentioned it in court. So, I’m talking about seven, eight, nine years ago.
To take it out on the ground that “I don’t think this is something which is justiciable or which should be dealt with on the judicial side” is certainly not correct.
Given that he is primus inter pares, the first among equals but not superior, imposing his views on a fellow judge, particularly the second senior judge of the time, is wrong.
Yes. The least he could have done is tell Justice Sanjay Krishan Kaul or talk to the bench, saying, “This is how I feel. I leave it to you because the case is before you, but this is how I feel.” Let them decide whatever they want to do; they may have a different point of view. But you cannot, should not interfere in the judicial functioning of the judge.
But you’re saying something else that’s very important. Not only was the decision to arbitrarily take it away wrong because he was imposing himself, and his only primus power is that he is not superiod. But, also, if it had to be done, there were more discreet ways of doing it – a quiet word, an explanation. That would be the test of leadership. He failed that test as well.
Yes, you’re right. First of all, he should not have done this. If he felt compelled for whatever reason, the normal thing would be to talk to the judge. That’s how you handle the court. I was Chief Justice of Guwahati High Court when seven states in the northeast came under its jurisdiction. Judges were reluctant to go to other states for two weeks at a time. Senior judges questioned why they should be dislocated. But I talked to them and told them that it’s good for the image of the court and for the people of the state. You’re not going to a foreign country. Having a dialogue with judges is nothing wrong, and it should be encouraged.
In this case, it amounts to a serious mistake on his part as a leader and as an administrator. So, as a leader and an administrator, it’s a serious mistake. Let’s now discuss some of the significant judgments delivered by the Supreme Court while Justice Chandrachud was Chief Justice of India. First, there’s the Article 370 judgment. The court upheld the government’s abrogation and, although it had concerns about the removal of statehood, it didn’t order its restoration. Instead, it was prepared to trust the government to do that. How do you evaluate this judgment?
You know, I have written about it at that point of time. I think a very important question, a very important question that arose and which was ducked, so to speak, was whether a state could be converted into a union territory.
Now, that’s a very important question. You see, you look at it like this. Today we have elections in a large state like Maharashtra.
Okay, I hope it doesn’t happen. But supposing the government decides that, you know, we’re going to divide Maharashtra into three union territories because of administrative reasons. You know, can the government do that? Does the Constitution permit something like that? You know, that is a very important question that was not answered.
And what the court said was, you know, we look at it at the appropriate time. Now, the appropriate time can only happen when it comes, the appropriate time will come only when it happens again. So are you going to wait for this thing to happen again and then take the call? No, no, no, this is not permissible or it is permissible, whatever.
So I think there, you know, this aspect was left out, which I think should have been squarely dealt with.
You’re saying one of the most important aspects of the matter that was in front of the Supreme Court was ducked. The Supreme Court deliberately chose not to look into it and to say they’ll do it at the appropriate time.
But the time that they had was the appropriate time because that power had just been exercised and the Supreme Court was required to judge whether that power was exercised rightly or wrongly. So this was this was more than a mistake. This is, in a sense, letting down the people of Jammu and Kashmir, possibly.
Yeah, You see, the question was before the court. Why was it not answered? Can you say, “ no, no, I’ll answer it later?”
The answer could have ended up being embarrassing to the government. Is that possibly one reason why they didn’t answer it and chose to do so later? I don’t know.
It’s anybody’s guess why they didn’t answer it.
But the terrible thing about this whole matter is that they have themselves given rise to the question I put to you. And it’s not in the interest of the court or of the chief justice that question should be asked. Has he buckled under some form of political pressure that undermines the image of the judiciary?
Yeah. You see, it’s like this.
It’s happened in this case. Now, you may have another case of seminal importance, may not necessarily be converting a state into a union territory. But you would have other issues, constitutional issues of seminal importance.
Can you say, “I’ll wait for the situation to arise again and then I’ll decide it?” Then you can keep ducking constitutional issues and say,” I’m sorry, I’m not going to answer it.”
And for the Supreme Court to duck constitutional issues is, again, a terrible lapse of duty.The second big judgment was about electoral bonds. The Supreme Court got a lot of praise for declaring them unconstitutional and striking them down. But it stopped short of recovering the money or punishing anyone. Again, how do you view this judgment?
You know, the follow up was, again, important. Right.
That you had some entities giving. One entity gave, I think, a thousand crores worth of electoral bonds to a particular political party. Another one gave five hundred, six hundred, whatever.
Where did they get the money from? You know, that’s an important question. You had entities who were shell companies. OK, where did they get the money from? Who was the backbone of that shell company? You had companies who were running into losses.
Where did they get the money from? These are questions that should have been answered. I don’t know whether they were raised in the first instance, but they were certainly raised in the second instance. When an application was filed before the Supreme Court, the Supreme Court did not do it. Now, this time they didn’t say we’ll wait for this thing to happen again.
I don’t know why they said no. But, you have the old saying,” operation is successful, but the patient is dead.” So you struck down the electoral bonds.
But the follow up, which was equally important, did not take place. Once again, questions are asked when an equally important follow up doesn’t take place. Is the reason some form of political fear or apprehension that the consequences will be embarrassing to the government of the day? Because the major beneficiary, the preponderant beneficiary of those bonds was the BJP.
Yeah, but, you know, it’s the question really in this in a situation like this is not embarrassment for the government. It is you talk about money laundering. I mean, there’s so many cases of money laundering, people getting arrested and all that.
It’s an important question for everybody to know, including the government. Where did these guys get this kind of money? I don’t think it will embarrass the government. I don’t think it will embarrass the BJP. I don’t think it will embarrass any political party.
But it is in the interest of transparency to know where did these people get this kind of money? And how is it they have so much money to spare? I mean, a thousand crores is not a small amount.
What we’ve established so far, Justice Lokur, is that in the two very important judgments we’re talking about, the Article 370 judgment, which also included the question of the bifurcation of Jammu and Kashmir into two, and the demotion of the state to Union Territory status.
And secondly, in the electoral bond judgment, in both cases, critical follow ups didn’t happen. We don’t know fully why they didn’t happen. People have their suspicions.
There may be political motivation behind those follow ups not happening. But when Supreme Courts of the country, repeatedly now it seems, fail to follow up the logic of their own decisions, it’s worrying and concerning because it’s inadequate what they’re doing.
Absolutely. The law is meant to be implemented. I think that’s pretty basic.
So when you lay down the law, you know, you have to have, you must have that follow up. Otherwise, there’s no point in saying this is what the law is and so what. So what we’re concluding is that in both critical cases, the Supreme Court under Justice Chandrachud simply didn’t go far enough.
For whatever reason, it didn’t go far enough. And therefore, it didn’t do full justice to the matter.
I wouldn’t say it didn’t go far enough.
There’s also a long-pending issue before the Supreme Court that Justice Chandrachud did not address: the challenge to the Citizenship Amendment Act (CAA). What message does his decision not to address it send?
If one wants to be fair to him, many Constitution bench cases were taken up. However, the CAA case was incredibly important. It was a live constitutional issue that had sparked protests across the country, not just in Shaheen Bagh. In my view, it was important to take up the case. Why it wasn’t taken up is anyone’s guess. But, yes, it should have been taken up.
Yes, it was a mistake because the case is a concern for the entire country, not just for one section of people.
Also, it’s a case that at least India’s 200 million Muslims believe dangles over their heads like a sword of Damocles. Whether they’re right or wrong in that belief is another matter, but it’s made them apprehensive, anxious and concerned. And with them in mind, it should have been taken up to clarify the situation.
Yeah, I think it should have been taken up not only, you know, with the Muslims in mind, but for the entire country in mind. I mean, the country also wants to know, isn’t it? What is the law? You know, is the CAA valid or is it not valid? It’s not only one section of people who want to know. I think the whole country wants to know.
Was this a serious mistake or a terrible mistake?
I mean, terrible is a very strong word. If you remember the Shaheen Bagh incident happened all over the country.
It’s not that it was confined to the north where there’s a large population of Muslims. It was all over the country. So it is something which impacted the country as a whole. And therefore, it should have been taken.
Before I move to other matters, let me raise a fourth judgment. But I readily acknowledge that Justice Chandrachud was not Chief Justice when it was delivered.
I’m referring to the Ayodhya judgment, but we now know he authored it, although he never signed it. Did that judgment, in your eyes, deliver justice? Or do you agree with the criticism that it was one sided and that it found in favour of those it deemed guilty of illegally demolishing the mosque in the first place?
You know, people make mistakes.
And the courts can condone it. But this was not a mistake in that sense.
The demolition of the Ram Janambhoomi was not a mistake. It was something that was deliberate.
I don’t think the court kept that in mind. But again, the logical follow up to a fact situation was not there. So in that sense, again, there was a mistake that a certain set of facts points to a particular conclusion. Right.
And that conclusion leads us to believe on the basis of those facts that the demolition was wrong. And perhaps, there was no temple or whatever. And therefore, this is the way we have decided.
CJI Chandrachud from an image uploaded by PM Modi. In the background is a triptych of the Babri Masjid, the Supreme Court and a representative crowd of protesters.
Let me put this to you. Do you really believe that the Supreme Court forgot or overlooked the fact that this is not a mistake? You can condone that it was deliberate and it was done with defiance. Or once again, would you accept that this raises the question, did they choose to forget because the consequence of remembering would have led to a judgment or a ruling that would embarrass the government or at least annoy the government?
Yeah. I think the words that you have said, they chose to ignore it or they chose to overlook it is, I think, correct. Why they did that is really, it’s difficult for me to say.
The constitution benches can’t make small mistakes. Constitution benches, if they make a mistake, it has to be a serious mistake.
You’re interpreting the constitution of India.
So we’ve identified three serious mistakes. Two in judgments that he authored as chief justice and one in the Ayodhya judgment, which he authored as just an ordinary judge of the Supreme Court. But three serious mistakes.
Yes, yes, yes. Karan, I think we have to be clear. The constitution of India is supreme. You cannot interpret it wrongly. And if you do, you’re committing a mistake, a serious mistake.
Moving away, Justice Lokur, from judgments, let’s come to the behaviour of the judicial system under Chief Justice Chandrachud’s chief justiceship. People like Umar Khalid and Sharjeel Imam continue to languish in jail for years without bail.
That’s also true of many of the Bhima Koregaon [Elgar Parishad] accused. How much of the responsibility or blame for the way they’ve been treated rests with Justice Chandrachud himself?
You know, that rests with the master of the roster. No we come back to that original point that cases were being sent to a particular bench. All right. Now, all judges are equal.
I mean, one doesn’t even need to say it. All judges are equal. So why is it that, you know, a particular set of cases goes to a particular judge and not to any other judge? Is there a reason for it? If there’s no reason for it, it’s too much of a coincidence that all these cases go before a particular judge all the time.
You know, once in a while, yes, but not all the time.
So there’s a real sense in which people who deserve bail and should have got bail but have been denied it for years, actually were denied bail because cases were given to benches in such a way that those benches were reluctant to give them bail. That again, at least through the eyes of the people affected would look deliberate, if not malicious?
Yeah, it would look deliberate, but it’s not only one bench. You know, this has happened in more than one bench.
And the Chief Justice should be in a position to identify and know those benches. Now, take the case of this Arnab Goswami. All right, that was dealt with by the Chief Justice. How come that was dealt with by the Chief Justice and Umar Khalid’s case was not dealt with by the Chief Justice? Is there any particular reason for that? These questions are bound to arise. How come Arnab’s case was not sent to that particular bench? When you’re the master of the roster, you have to distribute cases dispassionately. It would be somebody’s bad luck if his case goes before a bench, which is not inclined to give bail.
Or it might be good luck if it goes to another particular bench. But now you see that swing is taking place. If you have noticed in the last month or two months, a lot of people are getting bail. Why? Because the trial is not going to be concluded.
The truth is, Justice Lokur, you’ve raised a very important point. The Chief Justice, in interviews that he’s given, took great pride in the fact that he gave bail to Arnab Goswami. If I recall correctly, his words were, “I’ve given bail from A to Z.” But he did it personally, and by aligning or assigning cases in such a way, he presumably ensured that other people equally deserving, if not more deserving of bail, like Umar Khalid and Sharjeel Imam or the Koregaon Bhima accused, would not get bail. And that is surely something that people will remember as unfairness on his part.
Yeah, it’s very difficult to understand why this happened. You know, you gave bail from A to Z. I don’t think he said A and Z. I think he said A to Z. But he forgot you in between. That’s Omar Khalid, you know.
So, these are questions that are bound to be asked. And yeah, so you have to be very careful and take your judges into confidence
At this point, you’re also establishing failure to take judges into confidence, whether they’re fellow judges on the Supreme Court, or whether they’re high court Chief Justices. That’s another lapse on his part. He didn’t do that.
Yeah, I mean, those judges are your colleagues.
Okay, there’s no harm in talking to them. There’s no harm in discussing things with them. You know, you can’t take the court along by not discussing issues with them.
In the case of the election officer in Chandigarh, who was found guilty of criminal misbehaviour, no action was taken against him. That’s also true of the Shinde-Fadnavis-Ajit Pawar government in Maharashtra, which was deemed to be illegal, but the matter was tossed back to the speaker, who did nothing, and the government ended up serving its term. How do you view these outcomes?
The natural consequence would have been to take action against that Chandigarh election officer. The natural consequence of the Maharashtra judgment would have been to say bring him back. Okay, that’s what I think.
Of course, the court thought otherwise. They said that, “because he’s resigned, he can’t come back.” But he’s resigned, but he resigned under certain circumstances.
Would that be a valid sort of a resignation? Or could there be a third solution rather than the one that was followed now? You say, “all right, everything that’s happened is wrong. The fresh elections should be called right now.” You know, there are different possibilities.
And yeah, follow-up is important in every case, whether it’s constitutional or civil or criminal, it’s important. You can’t convict a man for murder and then not send him to jail.
We’ve just established in critical cases, five altogether, three judgments, as well as the Chandigarh issue and the Maharashtra government issue. In all five, there was failure to critically follow-up, which was necessary, required and expected, did not happen.
You’re right.
It should have happened, but did not. At the very least, I presume this is negligence.
Yes, well, I wouldn’t say negligence, but it’s failure of, you know, your duty.
Fail to do his full duty. Yeah. That’s pretty damning, isn’t it, for a judge?
Well, in the sense that there are different kinds of failures, but failure to do your duty in the follow-up of the judgments, you know, you can’t just leave it, hanging in midair. In that sense, it’s a failure.
Now, let’s come to another aspect of Justice Chandrachud. Justice Chandrachud, as Chief Justice, found a lot of time for the media and civil society.
He gave lots of public lectures, interviews. He even attended Express Adda and acted as a guest editor for the Times of India. As a result, he’s been dubbed a celebrity judge.
This was very different to any of his predecessors. Do you view this as a welcome initiative on his part, or do you think this is a mistake?
You know, I think it’s too early to judge, you know. I don’t know, frankly, I don’t know what’s going to happen if every Chief Justice, whether of the Supreme Court or of every High Court decides to go around giving all kinds of lectures and attending all kinds of functions.
What is going to be the consequence of that? I can’t imagine for myself, I can’t imagine a good consequence. It’s one thing to say that the court is an open court, but there are certain things which, you know, you have to stay away from. So, if you’re going to have every Chief Justice of every High Court saying, “because the Chief Justice of India has attended Express Adda, we will also have some function where people will be called for interviews” and so on and so forth.
I really don’t know what’s going to happen. One of the consequences of that would be, if a judge makes a statement which can have an impact on a judgment that is likely to come up before him or a case that is likely to come up before him, it can have serious consequences because of a conflict of interest. There would be an allegation of bias, you know.
So, this is a very unfortunate precedent that he set?
Yeah, as it appears today it looks not good.
You began by saying you didn’t want to call this a mistake or a welcome initiative, but now it seems that he set a precedent that it’ll be very unfortunate and therefore it sounds that he’s made a mistake in setting this precedent!
Yeah, it’s like this, you know, like I said, I don’t know what the consequence of this is going to be, but I don’t visualise a good consequence. So, if it does not lead to a good consequence, it’s an error, it’s a mistake or it is something that should have been thought through. You have the Chief Justice of some state, state X, and he says that, say in Maharashtra, Bombay High Court elections are going on or Jharkhand High Court elections are going on.
The Chief Justice comes out and starts holding interviews and says something in favour of one of the political parties, what is the consequence of that? I think the consequence is not good.
Why I say the consequence is not good is that it could have a snowballing effect and the moment you have a snowballing effect. With other Chief Justices of the Supreme Court or other different high courts, going around, giving all kinds of lectures, speaking to all kinds of people, it certainly is not going to be good.
There are also things that he said and did as Chief Justice that have caused a lot of concern. I’m referring to him inviting the Prime Minister to his own for aarti, for Ganpati Pooja, and the claim that God gave him the solution to the Babri-Masjid-Ram Janmabhoomi dispute. He’s faced a lot of criticism for this.
Some would say he’s actually faced humiliation as well. The question I want to ask you is, was that criticism, was that personal attack on him justified?
Well, you know, speaking for myself, I would not have and by the way, I do celebrate Ganesh Aarti. I would not have called the Prime Minister or any big shot politician.
I would not have called any politician at all. Okay. So, I think it was wrong on his part to have done that. Okay. The other thing, what was the other thing you said?
Regarding the Babri-Masjid dispute. See, everybody says prayers, unless you’re an atheist.
You don’t go around telling everybody that this is what I prayed for. I mean, unless you’re saying that I prayed for a boy or something when you’re having a child. But why say all this? It’s totally unnecessary and unthought for.
It smacks of a sort of lack of gravitas and judgment. Was inviting the Prime Minister for Ganpati Puja a serious mistake?
Yeah, it was. It was a serious mistake. It sends out the wrong signals and it did. That’s why there was this criticism.
By my count, in this interview, we have identified six different serious mistakes.
Whether they are to do with judgments, whether they are to do with the way cases are assigned to particular courts, whether they are to do with courting publicity and giving interviews or whether they are to do with inviting the Prime Minister for Ganpati Puja. Six serious mistakes in the course of two years as Chief Justice is not a very happy record.
No, it isn’t. It isn’t. But at the same time you have to give him credit for deciding a large number of Constitution bench cases, which no Chief Justice has done.
I think that’s a very major contribution to India’s jurisprudence.
But what you can’t escape from is also the side-by-side conclusion that his two years as Chief Justice were riddled with serious mistakes.
At Express Adda, he called the Aarti with the Prime Minister a simple meeting, adding, I think on that occasion, that no deals were cut. Does that explain what he did?
You know, the court or the Chief Justice does not cut deals.
You know, so where is the question of saying no deals were cut? I mean, you’re not supposed to cut deals. So really, I fail to understand that. You see, there are, of course, there are occasions when you meet the Prime Minister or the Chief Justice of India meets the Prime Minister.
Today it happened. I’m sure the incoming Chief Justice of India must have met the Prime Minister, he met the President. Absolutely nothing wrong with that, because that is something and it’s official function.
It’s the performance of your, you know, protocol. Okay, you could have a function and began from the launch of something or the other. And you have the Prime Minister invited for that you have the Constitution Day function.
And when you call the President, fine, you have a social, I mean, not a social but a formal meeting. Nothing wrong with that. I mean, that’s part of the duties of the Chief Justice as part of the duties of the President or the Prime Minister.
But, okay, also you could, you know, say for a wedding, you know, the Prime Minister is known to you, so you call him or the President is known to you, you call him. Or there’s a tragedy in the family and you know, the Prime Minister calls on the person for condolence. Yes.
But this does not fall in that category. And even if the Prime Minister or the President comes for a wedding, then you don’t cut deals with them. You know, that’s not a good, not a happy expression.
And what you’re saying is you certainly should not be when you are Chief Justice of India, inviting the Prime Minister to your home for Aarti, allowing it to be filmed and allowing the video to be disseminated widely throughout the country.
Yeah, next time you call him for dinner. Is that okay? You go and see a movie with him. Is that okay? Or you have a birthday party and you say come along. And he comes with a present.
Once again, suppose Chief Justices at high court start consorting with chief ministers in their states in this way.
Suppose junior judges or magistrates start meeting the people at their level. Again, setting a precedent that would be terrible.
Yeah, that’s why you have to look at the whole thing in the larger context. You know, you have the Chief Justice of the High Court going around hanging around with the Chief Minister. You have the district judge, there are 700 districts hanging around with the collector or whoever is the top boss in the district from the executive.
It seems that in many cases, Justice Chandrachud did not think about the what could be the consequences of the precedent he’s setting. We’re talking about High Court Chief Justices in meeting with Chief Ministers or lower judges meeting with lower officials.
Earlier, we talked about how high court Chief Justices might follow his precedent or start giving interviews. In both cases, he failed to consider the consequences of the precedent he was setting. This has to be, as I said earlier, another lapse of judgment or lack of judgment.
I think he should have, you know, visualised the consequences.
Finally, in a recent speech in Bhutan, Justice Chandrachud asked this of himself.
I’m quoting him: “How will history judge my tenure? What legacy will I leave for future generation of judges and legal professionals?” So let me put that question to you. How do you think history will remember him? What sort of legacy does he leave behind?
Well, like I said, so far as his legacy as a judge or a person who decides whether he’s in the capacity of a judge or Chief Justice.
In some respects, namely deciding Constitution Bench cases, good. I would definitely give him credit for that. Not following up, not good.
He should have followed up on many of these cases which we’ve discussed. As an administrator, legacy, I would say not good at all. Okay, I’m pretty clear about that.
That’s it, you know.
In an interview this morning to the Times of India, I’m talking about in an interview on Monday the 11th, he said, and I’m quoting him: “As Chief Justice of India, I left the system better than I found it.” Do you agree?
In what way? In what way was it better? You know, if you’re looking at the number of cases that were pending two years ago, today the National Judicial Data Grid says that there are 82,000 cases pending in the Supreme Court.
That’s not what, better than what it was, you know, two years ago. As far as I know, the Supreme Court did not cross 80,000 at that time. Today, as the head of the judiciary, we are looking at 51 million cases pending across the country.
It was less than that two years ago. In terms of appointment of judges, there are a large number of vacancies in the high courts and in the districts.
So, certainly in some ways it must be better than what it was, but I think we need to be clear in what way was it better and in what way was it not better?
And there are significant ways in which it’s not better. Pendency of cases has grown. I’m saying this from memory, but I believe it’s gone up from roughly 66,000, 67,000 when he took over to 82,000 plus, as you cited a moment ago.
The overall pendency of cases in the judicial system has gone up to, I think you said, 51 million. Clearly, those are instances where the system is not better than before he founded, and also his treatment of the way the registry files cases. Or his treatment of the way cases were allotted to particular benches clearly suggests the system is not better than before he founded. So, once again, there are serious question marks to his claim that he left the system better than I found it.
Yeah, there are serious question marks.
I thank you, Justice Lokur, for the time you’ve given me. I’m particularly grateful for the effort you put into analysing Chief Justice Chandrachud’s chief justiceship in terms of the cases and judgments he delivered where often there was no required follow-up. Though it was expected of him. The way you’ve analysed his administration of the Supreme Court and, in particular, allocation of cases to benches and the handling of the registry, but finally, also the way you helped us understand the things that he said and did, the number of interviews he gave, or the inviting of the Prime Minister to his home for aarti. The sad conclusion in many respects he was a good judge, but nonetheless his two years as Chief Justice is riddled with the mistakes.
We’ve identified six, maybe seven, during the two years he was Chief Justice. That, I think, is particularly eye-opening for the audience. Thank you very much indeed.
One word: let’s not also forget his contribution to the jurisprudence – constitutional jurisprudence – of the country.
Absolutely, thank you very much indeed. Thank you.
Transcribed by Manya Singh.
