Chief Justice Chandrachud II wants legacy. His patience in court was admirable; but his unmitigated quest for publicity leaves many aghast and at times outclasses politicians and even the prime minster. The photo-op of the CJI praying with Modi at the former’s residence is a blatant example. Not only was such an invitation untoward, what was totally unacceptable was the presence of cameras – so that the event could be featured prominently on television and in newspapers. Justice Chandrachud now wants to explain this in terms of the relationship between prime ministers or chief ministers and judges, which I hope will not become a norm for the future.
Under him, even judicial thinking was not spared. He publicly declared his dilemma over the Babri Masjid case and found an answer through a deity. Deities do not decide cases in any court in India. I am curious to know which deity helped him. Was it Lord Ram? His judgment in the Babri case – either under CJ Ranjan Gogoi’s pressure to which he succumbed or from the deity – raises troubling questions about constitutionalism. In the light of Justice Chandrachud’s revelation, this deity-led judgment will go down as one of the most flawed decisions in the Supreme Court’s history.
Set aside the fact that I argued the Babri matter for the Muslim plaintiffs without consulting any deity or god. The Babri Masjid case ought to have been decided against the Sangh Parivar on one issue alone: The ‘Hindu’ case was well outside the period of limitation of 12 years. Title had become an issue in 1961. The Hindu case was filed in 1989. His justification that no one was there to plead their cause is legally bogus. The issue against ownership to the Hindus was already decided in 1885-86, whereby Muslims had ownership rights and Hindus, at best, prescriptive rights of prayer. Possession was with Muslims until the 1949 ‘miracle’ of divine trespass and the court’s decision to order status quo permitting Hindu prayer. How could the CJI’s judgment overlook the fact that the masjid was attacked in 1934-36, an idol deviously trespassed in 1949 and then in 1992 the entire historic monument was destroyed. The recompense for these crimes, in the eyes of the bench, is five acres. If the logic of this judgment is accepted, then trespass and destruction were acceptable because the Supreme Court proclaimed the site as Hindu land. Now, we are told that the main judgment was deity guided. In the view of some, if spoken earlier and not just before his retirement, Justice Chandrachud’s ‘revelation’ could be part of the stuff of severe condemnation, if not more.
The installing of a marble statue of Lady Justice in the Supreme Court Bar library without blindfold but with a constitution in the other hand is another example of his quest for legacy. Should the other high courts which follow the original, universal version now bow to this legacy made virtuous by the CJI’s installation and supposed intellectual and architectural acuity?
I do not want to speak of his judgments. They will stand the scrutiny of time and one at least, already, has been set aside. While one part of the judgment in Pavitra – II (2019) 16 SCC 129 on reservation by a two judge bench (Justices Chandrachud and Lalit) rightly struck down an argument by me, the main point in the case on how reservations were to be applied was overruled as contrary to constitutional bench judgments by a three-judge bench in Jarnail Singh II (2022) 10 SCC 595. This was the CJI’s special area of doctoral interest and the judgment is full of extra juristic flamboyance.
Scrutiny must also attend the dissent Justice Chandrachud penned (for Justices Lalit and Goel) in Abhiram Singh (2017) 2 SCC 629, where the issue was whether candidates’ appeals to their religion were impermissible in elections. The majority (Justice Madan B. Lokur for himself and Justices Nageswara Rao, T.S. Thakur, and Sharad Bobde) decided this required a purposive interpretation barring any appeals to religion. Justice Chandrachud, claiming a literal interpretation but also disguised as a purposes interpretation, held that the religion of the rival candidate cannot form an appeal to refrain from voting for that candidate but that it is not a corrupt practice “to refer to the religion, race, caste, community or language of the voter”. This gave a license to invoke religion against others. His judgment is an essay in how religion caste, language are inherent in the constitution and must have due recognition. Sangh Parivar lawyers were happy with that dissent permitting religion bashing.
The court’s Jammu and Kashmir decision is on par with its ‘preventive detention’ decision during the Emergency. Here, Justice Chandrachud simply followed the government line, and allowed an executive order to invalidate a constitutional amendment, which is a constitutional travesty! He forgot the basic principles of asymmetrical federalism which he has so often emphasised as fundamental. Constitutions within the constitution are a part of India’s federalism as is clear from the Sixth Schedule. That is what Ladakh’s leaders were on hunger strike for. An expert on General Sales Tax told me that for all his erudition in the GST case, the matter could have been decided in a few pages but he wanted to learn the subject in the style of his not-so-distinguished predecessor, CJI Khehar, and propound constitutional wisdom. Anyway, the Kashmir decision is a perfect example of upholding the Modi government’s electoral agenda.
The record of each judge or CJI will always be uneven. CJI Chandrachud’s court invalidated electoral bonds where suspect political motives closer to the BJP were obvious but could not insulate the autonomy of the Election Commission. Examples can be multiplied, but the CJI’s court had no business to run a parallel investigation in the West Bengal hospital case when a criminal investigation under law was already taking place.
Many of his judgments will be remembered for diligence. But when it came to opposing the Sangh Parivar government, his independence weakened. This is not a good legacy for an outgoing CJI (and his successor, who followed him in the J&K case). These are troubled times when we look to the Supreme Court as a bastion. Unfortunately, neither legal academics nor journalists have critiqued the courts work with vigour. We must pay heed to the distinguished journalist N. Ram’s warning about the decreasing independence of the media.
To pontificate is a self-assumed privilege but not at the expense of the court system and justice, however profound the vanity. Justice and the courts are fundamental to India’s constitutionalism. Perhaps a poets’ advice is salutary: “Pull down thy vanity. I say pull down”. But then, ego can always be a legacy.
Rajeev Dhavan is a senior advocate.
