Sravasti Dasgupta 
New Delhi: Prime Minister Narendra Modi’s videographed visit to Chief Justice of India D.Y. Chandrachud’s residence to participate in a Ganesh puja and perform aarti, has raised questions of propriety and violation of separation of powers between the executive and the judiciary, secularism and political symbolism ahead of the Maharashtra state assembly elections.
On September 11, Modi visited Chandrachud’s residence and performed aarti along with the chief justice and his wife. The images of the visit were posted on the prime minister’s X handle and widely circulated on social media and multiple news platforms.
“Joined Ganesh Puja at the residence of CJI, Justice DY Chandrachud Ji,” Modi wrote on X.
“May Bhagwan Shri Ganesh bless us all with happiness, prosperity and wonderful health,” he added.
The visit has sparked concerns from within the legal fraternity about whether the heads of the two arms of government — the executive and the judiciary — should be seen attending a private religious function together in public gaze. Opposition parties have questioned how justice will be delivered at all in cases where the government — the largest litigant before courts — is a party, with the chief justice of India now attending a private religious event with the prime minister being made public.
“The point is that the judiciary and executive generally operate in a system of checks and balances. This (the prime minister attending a private puja at the chief justice’s residence) was an example of excessive and unnecessary cordiality which destroys the image of separation of the executive and the judiciary and possibly even the appearance of impartiality,” Sanjay Hegde, senior advocate in the Supreme Court told The Wire.
“An unwarranted precedent”
The relationship between the chief justice of India and the prime minister was encapsulated by former Chief Justice M.N. Venkatachaliah while delivering the fifth P.V. Narasimha Rao memorial lecture in January 2017 when he recalled an interaction with the former prime minister.
“Every time a CJI leaves the office and the new one comes in, there is a customary dinner. At the customary dinner after I was sworn in, Narasimha Rao casually after the dinner said ‘Our relationship will be cordial’ and to which I shot back ‘It should not be cordial’ and he was such a witty person, though he was taken aback a bit, he replied ‘okay it will be both cordial and propitiatory’,” Venkatachaliah was quoted as saying by The Hindu.
It is this propriety that came under question after Modi and Chandrachud performed the puja together on September 11, in an event that the Campaign for Judicial Accountability and Reforms (CJAR) has called as “setting an unwarranted precedent.”
“This precedent undermines the perception of judicial independence, raises critical questions about the separation of powers and the impartiality of the judiciary,” it said in a statement.
The CJAR also referred to recent instances that have raised concerns of impropriety including former Chief Justice of India Ranjan Gogoi hearing his own case, former Calcutta high court judge and now MP Abhijit Gangopadhyay resigning from his post and immediately joining the Bharatiya Janata Party (BJP), former judges becoming governors and Rajya Sabha members “without any cooling off period“.
“Our concern is grounded in the fact that both the Union and the state governments are the largest litigants before the courts. Such close association between the judiciary and political leadership undermines the ability of the judiciary to impartially adjudicate cases involving the government and the ruling political party. It casts doubts as to the objectivity of an institution tasked with checking executive power,” the CJAR said.
Questions of impartiality
Following Modi’s visit to the chief justice of India’s residence, Opposition leaders in Maharashtra, where assembly elections are due later this year, demanded that Chandrachud should recuse himself from a case pending before him in which the Shiv Sena (UBT) has challenged the Maharashtra speaker’s decision to recognise chief minister Eknath Shinde-led Shiv Sena faction as the real Shiv Sena.
“Our case of Maharashtra… the hearing is going on before chief justice of India Chandrachud. So we have doubts if we will get justice because the prime minister is the other party in the case. In our case, the other party is the central government. The chief justice should distance himself from this case because his relation with the other party — in this case, the prime minister is openly visible. Will CJI Chandrachud be able to give us justice in such a situation?” asked Shiv Sena (UBT) MP Sanjay Raut.
A 16-point document on judicial values adopted in a full court meeting of the Supreme Court on May 7, 1997 titled the ‘Restatement of Values of Judicial Life’ lays down a guide of the expected conduct of the judges of the Supreme Court and high courts.
“Justice must not merely be done but it must also be seen to be done. The behaviour and conduct of members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly, any act of a judge of the Supreme Court or a high court, whether in official or personal capacity, which erodes the credibility of this perception has to be avoided,” the document states in its first point.
“A judge should practise a degree of aloofness consistent with the dignity of his office,” it states in point six.
According to Justice Ajay Rastogi, former Supreme Court judge, constitutional separation of powers is in respect of the execution of work and discharge of duty assigned.
“So when you exercise the power vested with you under the constitution that separation of powers is sacrosanct. But if someone goes to someone’s house and has a joint puja I don’t see how this question comes up. Is justice defined by the constitution defeated if the two leaders of the executive and the judiciary hold a puja? Separation of power only relates to the execution of work, which is always to be maintained,” Justice Rastogi told The Wire.
However, the 16-point document also states that all the judges must be conscious that they are under the public gaze.
“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,” it says in point 16.
According to a legal observer, who did not wish to be named, the right to privacy of one who holds public office is not the same as that of an ordinary citizen because they are to “be held accountable for their actions.”
“To hold a public office does not mean you lose your right to worship, or are divested of your fundamental rights. The CJI can hold a puja at his house, but to invite the head of the executive, when there are cases of the government before him, is that appropriate?”
Question of secularism
Facing criticism, the BJP has pointed to an Iftar party hosted by former prime minister Manmohan Singh in 2009 which was attended by then Chief Justice of India K.G. Balakrishnan, and alleged a bias against Hindu festivals.
“The only difference is that the previous prime ministers used to organise iftar parties at their residences and then the chief justice used to attend them. But why is there so much hue and cry over Prime Minister Narendra Modi’s visit to worship Lord Ganesha and Goddess Mahalakshmi? While opposing Hindutva, why have they now stooped to opposing Lord Ganesha and Ma Gauri-Mahalakshmi?” said Maharashtra deputy chief minister Devendra Fadnavis.
Invoking a similar argument, BJP MP Sambit Patra in a press conference on Thursday questioned whether the prime minister and the chief justice of India should not exchange pleasantries and asked should they instead be “enemies”.
“I am very surprised. The Opposition is not to their meeting but to the Ganpati puja. The CJI comes from Maharashtra and kept a Ganpati puja. He must have invited many others and they too may have attended. But the way in which Manmohan Singh used to host iftar parties, did the CJI not come? If they can break bread together during iftar parties, then why this distinction between two occasions? There are some silly so-called seculars who will object to such courtesy visits. But the maturity of this democracy is tall enough to bypass this kind of immature talk,” Patra said.
According to former Lok Sabha secretary and constitutional expert P.D.T Achary, more than questions of the dilution of separation of powers, the event raises concerns about secularism, where the two constitutional functionaries are openly showing their devotion.
“That Balakrishnan attended the iftar party hosted by the former prime minister is also wrong in my view. Neither the prime minister nor the CJI should have replayed it. The two can meet on social occasions, but here it was a religious event, where they were both doing Aarti together,” Achary said.
He added:
“If it is a private function and nobody knows about it, that is different but if it comes before the public, in the manner in which it was publicised, that means that important constitutional functionaries are paying their devotion openly, which in my view is against secularism as in my view the state has no religion and won’t promote any particular religion and anything done in violation of that is anti-secular. Moreover, inviting the prime minister makes it official even though it is a private function because the prime minister is not his personal friend.”
Despite the criticism that both the prime minister and the chief justice of India have received, the central government has doubled down and defended the public nature of the event as spirit of transparency.
“The fact that the prime minister himself posted this video in the public domain demonstrates the kind of transparency, ethics and propriety followed by these two constitutional authorities steering India. It is the sinister which is hidden, It is the pure which is shared. This video was shared in the same spirit,” said Union minister Bhupender Yadav writing in The Indian Express.
Yadav added:
“To corner the two over their personal choice to come together for a pooja reflects petty politics and a deliberate will to paint Indian institutions as compromised. This has been an ongoing project of the Opposition.”
Political symbolism ahead of polls
The political symbolism of the event — that the two came together for Ganesh puja — a major festival in Maharashtra, which is going to the polls later this year, is also under question, especially with Modi himself wearing a traditional Maharashtrian topi while performing aarti at the chief justice of India’s residence.
Writing in The Indian Express, senior advocate in the Supreme Court Indira Jaising raised several questions:
“One, at whose invitation did the PM go to the CJI’s residence? Two, why were other constitutional functionaries not present? Were they invited? Three, in the two-year tenure of the CJI, how many times has he met the PM for social and/or religious functions in private? Four, why was a private religious ritual used for a photo-op? Five, was the symbolism of the Maharashtrian topi lost on the CJI given that the Maharashtra elections are coming up? Six, given this overt display of Hindu symbols, hymns and rituals, can non-Hindu litigants expect impartial justice from the CJI?”
According to Hegde, while the prime minister and the CJI attend a host of events including law conferences or state events, the context of such meetings are important.
“Nobody is saying they must be at daggers with each other. Exchange of pleasantries always happens. But the context also must be seen as justice must not only be done, but seen to be done,” he said.