The gap he maintained: The dichotomy between CJI Chandrachud’s words and deeds in 2023

2022 was a mixed bag for the judiciary. 

That year, India had an unprecedented three CJIs roll through. NV Ramana retired on August 26. He was succeeded by UU Lalit, who retired on November 8. Then DY Chandrachud was sworn in on November 9 as the 50th Chief Justice of India.

And with him, he brought the winds of change. 

Keep in mind that CJI Lalit’s tenure spanned a paltry 74 days and CJI Ramana was criticised for “judicial pusillanimity”. CJI SA Bobde’s term was “chequered”, CJI Ranjan Gogoi’s was defined by “deliberate omissions and commissions” (and a sexual harassment suit), and CJI Dipak Misra’s was controversial, to put it mildly.

Then came CJI Chandrachud, armed with a Harvard degree, an extraordinary career, and immaculate ‘pedigree’. To a layperson, he wore a cloak of progressiveness like no other in the judiciary.

After all, he stood for LGBTQIA+ rights during the decriminalisation of section 377. He emphasised an adult’s right to decide on marriage and religion during the Hadiya “love jihad” case. He was part of the nine-judge bench that unanimously recognised privacy as a fundamental right. When a five-judge bench upheld the Aadhaar project, he was the sole dissenting voice. 

He said criminalisation of adultery strips women of their “sexual autonomy” and treats them like “chattel” of their husbands. He wrote a minority judgement saying there was a “cloud” on whether the Maharashtra police had “acted as fair and impartial investigating agency” in the Bhima Koregaon case. He also famously described dissent as the “safety valve of democracy”.

So, when he was named as CJI, opinion pieces suggested he was “a silver ray in dark clouds”, “a revolutionary” who guarded against “erosion of secular values”.

And we agreed. At a time when we feared the judiciary was too pliant to stand up to the government, the great liberal hope had arrived. 

A year later, CJI Chandrachud has offered oral remarks and minority judgements marked by progressive thought and words. He’s given lecture after lecture on democracy, press freedom and the importance of dissent.

But when it comes down to substantial matters where the conduct of the union government is under scrutiny, there’s little or no difference between Chandrachud and his predecessors. 

Clues, Umar Khalid and ‘master of the roster’

Even for us non-lawyers, it’s not like there weren’t signs. 

In 2019, the Supreme Court headed by CJI Gogoi delivered a unanimous verdict in the Ayodhya case, saying the disputed land must be handed to Hindu groups to build the Ram Mandir. The photograph of them staring at the camera awkwardly linking hands is seared in our collective memories.

The verdict broke with tradition and did not carry the name of the judge who wrote it. But it’s widely believed that it was authored by Chandrachud.

In 2018 as a Supreme Court judge, he had been part of the reconstituted bench that dismissed PILs seeking an independent investigation into the 2014 death of Judge Loya. Chandrachud wrote the verdict and described the PILs as a “vituperative assault on the judiciary” and an attempt to “seriously scandalise” judges. It’s worth remembering that the Judge Loya case had been the tipping point for four senior judges to call an extraordinary press conference in January that year.

But hope springs eternal, which brings us to 2023.

At the outset, there’s some praise. The Supreme Court disposed of 52,000 cases this year, apparently the highest in six years. (The court itself described it as a “watershed moment in the nation’s legal history”). There’s a changing attitude towards the government’s beloved “sealed covers” and he’s embraced technology in the judicial system. The Supreme Court weighed in favour of the AAP government over the Delhi ordinance, though the BJP government passed it anyway. Last month, it criticised Kerala Governor Arif Mohammed Khan for “sitting” on bills for two years.

As for the rest?

India has the highest share of undertrials in prison since 1995. And who is surprised? 2023 is the year that the Supreme Court consistently adjourned bail hearings for Umar Khalid, in jail since September 2020. 

It first came up for hearing on May 18 when six weeks were given to the Delhi police to file a response. During the second hearing on July 12, the bench gave the police 12 more days and said the matter would only take “one or two minutes” during the next hearing.

The CJI’s court adjourned hearings on July 24, August 9, August 17, August 18, September 5, September 12, October 12, November 1, and November 29 – when it was adjourned to January 10, 2024.

And there’s more at play. 

As CJI, Chandrachud is the “master of the roster”, allocating cases and constituting benches at his discretion. But earlier this month, Article14 reported that at least eight cases had been moved to Justice Bela M Trivedi in violation of Supreme Court rules, which require the case to be “retained by the senior judge before whom the case was first listed or listed before a judge hearing a similar case”.

These cases include Umar Khalid’s bail plea, petitions challenging the draconian UAPA, a bail plea of Bhima Koregaon accused Mahesh Raut, and corruption charges against AIADMK leader Edappadi K Palaniswami. 

Justice Trivedi had previously served as law secretary in Narendra Modi’s government in Gujarat. At least three senior lawyers – Dushyant Dave, Kapil Sibal and Prashant Bhushan – publicly flagged irregularities with the allocation of cases. 

CJI Chandrachud addressed the issue when the lawyer of AAP leader Satyender Jain protested the listing of Jain’s bail petition in front of Justice Trivedi.

“It is very easy to fling allegations and letters,” CJI Chandrachud said. “...If the case is listed before a judge, the judge will take a call. I will not say anything.”

What more did he need to say?

When progressive meets regressive 

On October 17, the Supreme Court finally delivered its verdict on same-sex marriages, five months after it had reserved its verdict.

That morning dawned with thousands tuning into the livestream of proceedings on YouTube. They were told the five-judge bench had produced four judgements and CJI Chandrachud went first.

He said it was incorrect to characterise marriage as a “static and unchanging institution” and that governments must not discriminate against the “right of the queer community to enter into union”. He said the state must not discriminate against someone “on the basis of a characteristic over which the person has no control” and said there must be no restrictions on the right of non-heterosexual couples to adopt.

But he also said it was for Parliament to decide.

And so, despite half-hearted minority judgements from CJI Chandrachud and Justice Sanjay Kishan Kaul, the Supreme Court ruled 3:2 that it could not legalise same-sex marriages in India. The ball is back in the government’s court.

As Muskan Tibrewala, one of the queer lawyers who argued the case, told The Hindu: “Considering that the government has not been supportive of our rights, and historically the Supreme Court being the upholder of queer rights, the SC has failed to deliver its responsibilities.”

Two months later, the Supreme Court unanimously upheld the central government’s August 2019 stripping of Jammu and Kashmir’s special status. In his part of the judgement, while upholding the power of the President to abrogate Article 370, Chandrachud said the President and Parliament take “hundred if not thousands” of decisions and every action could not be subject to judicial review. He reasoned that Article 370 had only been a “temporary provision”and that J&K retained no element of sovereignty when it joined the Indian union in 1947.

It’s reminiscent of the Supreme Court’s verdict in January 2023 that found “no flaw” in the government’s disastrous demonetisation exercise of 2016.

Then there was the case of Justice S Muralidhar, who once convened an extraordinary hearing of the Delhi High Court over the Delhi riots and BJP leaders making provocative comments. Hours later, the central government notified his transfer to the Punjab and Haryana High Court.

In January 2021, Muralidhar was appointed Chief Justice of the Orissa High Court. In September 2022, the Supreme Court collegium, which is headed by the CJI, recommended his transfer as Chief Justice of the Madras High Court. The central government sat on this proposal until CJI Chandrachud, in April this year, finally recalled the order.

Muralidhar finally retired on August 7, 2023 at the age of 62. Why didn’t the collegium recommend his elevation to the Supreme Court? Actual lawyers argue this better than I could. But by this point – is anyone surprised?

Perhaps it’s unfair to chide Chandrachud. Google “Chandrachud lecture” – he seems to give a lecture at an institute of eminence every week or two – and he says plenty that is good, sensible and important about issues like gender stereotypes, pay equity, free speech, and online harassment.  

But past his progressive spiel outside the courts, his actions within them have been conventional, perhaps even conservative. What are courts for if they’re constantly batting it back to a government that’s made it abundantly clear what it plans to do? Despite his liberal platitudes, he’s fundamentally a status quo judge who’s loath to rock the boat, even if the union government pushes the bounds of constitutionality to their very limit (and beyond).

In the past few years, how many times has the Supreme Court struck down actions of the union government when challenged? Its 2015 striking down of the National Judicial Appointments Commission was arguably in self-interest. Further back in time, it struck down Section 66A of the Information Technology Act, originally legislated by a previous UPA government. One might include its verdict on the Delhi ordinance, for good measure, which upheld the Delhi government’s powers.

In a way, Chandrachud is in a peculiar position. Liberals are disappointed because he’s proved to be no different from his predecessors, claims of “boldness” be damned. And right-wing trolls hate him too; he’s been subject to vicious online trolling for being “woke”, “feminist” and “anti-Hindu”. 

He’s got a year to go before his tenure ends in November next year. It remains to be seen whether his legacy will remain that of a status-quo CJI who spoke pretty words outside the court but did little of significance within, or someone who can reinstate the role of the judiciary as a balancing force in Indian polity. 

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