In an interview to assess what sort of chief justice Justice Chandrachud is likely to be and also to evaluate his judgements as a Supreme Court judge, a former President of the Supreme Court Bar Association, Dushyant Dave, has said that sometimes Justice Chandrachud can be disappointing in politically sensitive matters.
Dave specifically said the Justice Loya case judgement was “deeply disappointing”.
In a 33-minute interview to Karan Thapar for The Wire, Dushyant Dave said Justice Chandrachud as Chief Justice of India must follow the example of Justice P. D. Desai, a former Chief Justice of the Himachal Pradesh, Calcutta and Bombay high courts. Dave said Justice Desai “didn’t give a damn about the executive”. As Chief Justice of India that is the example Justice Chandrachud should follow. This point was made when comments made by Justice Chandrachud in his P. D. Desai Memorial Lecture in February 2020 on dissent as “a safety valve of democracy” were being discussed.
In the interview, Dave also referred to three other areas where Justice Chandrachud has disappointed him.
First, is the Hadiya case where Justice Chandrachud and Justice Khehar ordered an NIA investigation into a love marriage only to be deeply embarrassed when Hadiya came to court and said she loved the man she was with. Dave said this investigation was a wrong decision and should never have been ordered.
Second, Dave said he was disappointed when Justice Chandrachud gave an extension to Jay Shah at the BCCI.
Third, Dave said Justice Chandrachud is “extraordinarily conservative in tax and criminal matters”.
Dave’s first point that sometimes (he insisted it wasn’t every time or even frequently) Justice Chandrachud can disappoint in politically sensitive matters gains significance in the context of what Dave believes is the present state of the country and, therefore, the background against which Justice Chandrachud is becoming CJI.
“We are in extraordinarily challenging times…the executive is all too powerful…authoritarianism is increasing every day…democracy is under siege…these are all terrible signs for a vibrant democracy”.
Against this background, Dave added: “Only the Supreme Court can stop the erosion of our democracy”. He said the role of the Supreme Court and, in particular, the CJI is, therefore, “extraordinarily important”. This is further underlined by the fact, as Dave pointed out, that since around 2017, after Chief Justice Thakur’s retirement, “the Supreme Court has gone down and down…the court has ceded territory to the executive”.
The conclusion that Dave is suggesting is that at a time when the Supreme Court and the Chief Justice, in particular, must act as a bulwark against the erosion of our rights, freedoms and democracy, the fact that sometimes Justice Chandrachud “in politically sensitive matters” is disappointing is a concern.
Dave also expressed specific disappointment about the Ayodhya judgement, where Justice Chandrachud was a member of the bench and many believe, though it’s not confirmed, the author of the judgement.
More particularly, Dave was deeply concerned about comments made by Justice Chandrachud in May this year about the Places of Worship Act when he said that it does not permit a change in places of worship but you can still determine their character. Dave said this has “opened up a Pandora’s box”. He said it has “sent shivers down the spine of the minority community”.
However, for a lot of the time, if not the majority of the time, Dave spoke in high praise of Justice Chandrachud. He called him “an intellectual giant”. He said he has “extraordinary qualities as a judge”. For the stand he took in defence of individual freedoms in cases like the right to privacy, decriminalisation of homosexuality, the right to abortion and the right of women of all ages to visit Sabarimala, Dave would give him 10 out of 10.
Dave also praised Justice Chandrachud’s position defending the right of dissent and speaking out against the use of arrest as punishment. This is a very substantial part of the interview and I don’t want to give you the wrong impression by not mentioning it.
However, having said all of that, Dave also added: “For a judge so willing to expand human rights it disappoints me, I must say … the fact he has given greater leeway to the executive”.
Watch the full interview here.