The republic has a new chief justice.
Since Chief Justice Sanjeev Khanna will stay only for seven months in that designated house on Krishna Menon Marg, it will be unfair to burden him with any great expectation, and, hopefully he will also not burden himself with this hobbling business of legacy.
What the citizens can, nonetheless, reasonably expect of him is that he would remind himself every morning, till May 13, 2025, of the oath he took a day ago: “That I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the constitution and the laws.” A profound burden.
Retired judges, eminent lawyers, and other seasoned court-watchers have observed a transformation in the man the moment he takes over as the Chief Justice of India. The alchemy manifests itself in mysterious ways.
A strange sense of self-importance subverts years of common sense and judicial fortitude.
Each occupant of that august office finds himself having to balance his constitutional dharma with his portmanteau of individual karmas, professional certitudes honed and compromises made, and, admirable strengths and unsavoury weaknesses. By the time a man gets to be the chief justice of India, he has travelled on long and slippery path of networking and god-fathering. Consequently, each occupant brings to the job a highly nuanced – but a self-serving– sense of honour.
In recent years even a minimal sense of honour is being grudged to the office of Chief Justice of India. Two weeks ago, India Today, in its compilation of its ‘High and Mighty’ ultimate power list of 2024, not only clubbed the then Chief Justice D.Y. Chandrachud in the category of ‘Portraits Framed in Steel,’ but placed him behind the principal secretary, the national security advisor and the Reserve Bank of India governor. The CJI was pigeonholed along with such instruments of executive as cabinet secretary, director of the Enforcement Directorate and the Central Bureau of Investigation director. Chief Justice Khanna and his colleagues may want to ponder as to why this utter institutional devaluation of the judiciary took place.
A partial answer can perhaps be deduced from how the Solicitor General of India last week told off the then Chief Justice. When a CJI-headed bench was passing orders in the matter of the Manipur chief minister “tapes,” the learned SG had the gumption to tell the CJI that he and his colleagues lived in “ivory towers.”
It is unthinkable that an Attorney General like M.L. Setalvad or even a Soli Sorabjee would have dared to use this kind of language of contempt. Those were different times and had different etiquettes of respect. In fact, this was the second time that the same law officer was flinging the charge at the bench. In the matter of electoral bonds, the CJI and his colleagues were told judges “sit in ivory tower and will never know what is going on.” On both occasions, the SG was careful to add that he did not mean to use the “ivory tower” expression either “negatively” or in a “pejorative sense,” yet there was no mistaking the derision.
Pejorative or not, the “ivory tower” takedown does betray the ruling elite’s superciliousness. It is understandable for a political clique to convince itself that it is true and authentic representative of the masses, people or citizens. And, once in power, the same clutch of politicians can mesmerise itself with its ability to read the masses’ pulse; and, therefore, whatever the ruling group does or does not do – moral or immoral, legal or illegal, ethical or unethical – carries with it, ipso facto, a stamp of legitimacy. A leader then demands that all institutions of the state bend over backward to accept, justify and rationalise his every act of whim and fancy as legitimate, beyond scrutiny or questioning.
The new Chief Justice may or may not want to put up with the arrogance of those who do not sit in ivory towers and instead take pride in working the streets; but he need not allow himself to feel intimidated by all those who presumably drive their power and clout from having masses in their thrall. After all, as a life-long servant of law he knows – as does every student in every law school – that in India the only source of legitimacy is the constitution of India. The chief will do himself and the institution over which he now presides a great favour if he would simply re-affirm daily the supremacy of the constitution.
So long as India remains a constitutional democracy, it will remain the prime task of the higher judiciary to see to it that authority is exercised only lawfully, in accordance with prescribed rules and regulations – and not as per the preference of any dharma sansad or personal communication between a judge and their god or any presumed demand of public conscience. The new Chief Justice need not seek to carve out a name for himself in history books; he will be remembered in history if he simply remembers that he is empowered enough to see to it that a wayward executive does not maul the constitution.
Harish Khare was editor of The Tribune.
