It needs practice to preach: The dichotomy between informed criticism and activist outrage

An article published by Newslaundry on December 28, 2023 – titled “The gap he maintained: The dichotomy between CJI Chandrachud’s words and deeds in 2023” – which can, at best, be described as misplaced outrage, has led me to pen my thoughts in response. 

The article, which appears to be written by an author who may not be familiar with the functioning of the courts or stepped foot within the precincts of the Supreme Court, intends to highlight the dichotomy between the “words” and “deeds” of the present Chief Justice of India in 2023. 

In that article, the “words” spoken by the Chief Justice of India were a reference to the various lectures delivered by him, and the “deeds” were decisions rendered by him, sitting with other judges in the Supreme Court of  India.

To extract the thoughts expressed by a judge in a lecture on a particular topic, and to selectively apply them to certain matters, is too simplistic an understanding of the true workings of the judicial system. The article in question has skipped the very fundamentals of judicial decision-making – the individuality of the facts of each case, the sound legal principles applicable, practice and procedure of the Supreme Court, and the constitutional goal to do complete justice. 

The words chosen to critique the judgments of the Chief Justice, particularly the references to the Chief Justice of India as being armed with an immaculate “pedigree”, and of “wearing a cloak of progressiveness like no other in the judiciary”, do little to buttress any legal argument and stray into the area of a rant. This is especially so considering the emphasis on specifics in courts of law as compared to column space in news.

After the reference to the Chief Justice’s lectures on democracy, the article comes to the central point it attempts to highlight – the matter of Umar Khalid’s bail. To begin with, the article misleads that Umar Khalid’s bail petition was deferred on multiple occasions by the Chief Justice, by stating that the “CJI’s court” adjourned the matter on various dates. 

The matter was, in fact, listed before another bench, of which the Chief Justice was not a member. That bench had unquestionably attempted to hear the case, while accommodating the requests for adjournment made by the parties, including by the lawyers of Umar Khalid himself. 

The article in question also fails to mention that when the matter was listed on July 24, 2023, a letter for adjournment was circulated on behalf of Umar Khalid. On the next date, August 9, one of the judges on the bench recused from the matter. On the following date, the matter was adjourned simpliciter. 

On September 5, a request for adjournment was again made on behalf of Umar Khalid. Thereafter, on September 12, the Supreme Court granted ‘leave’ in the matter to facilitate its hearing on non-miscellaneous days. On the following date, the court directed that the matter be listed in the first five items, again, with the intention of concluding its hearing. 

Lastly, on November 29, a joint request for adjournment was made, including on the part of Umar Khalid’s legal team, to adjourn the matter, due to non-availability of the arguing counsel. None of these delays can be said to be attributable to the Supreme Court, and in no manner to the Chief Justice of India.

The over-simplification of the adjournments in the Umar Khalid matter, and the blanket statement of the article attributing all adjournments to the “CJI’s court” do not appreciate much of the detailing and complexity which the author still may have issues with, but then could at least be directed more accurately. It also reflects why researching the details in matters of the court is imperative for a rational critique. 

To highlight the plight of numerous undertrial prisoners, the article retains its spotlight on only one undertrial prisoner, Umar Khalid, without any supporting statistics to show the actual disposal of other bail applications by the Supreme Court.

In fact, the Chief Justice of India has on numerous occasions constituted benches on non-working days and holidays, in matters where the personal liberty of individuals is in grave danger. 

For example, the hearing of Teesta Setalvad’s bail application took place on a Saturday, and even the larger bench was constituted that very evening, after the disagreement between two judges. Likewise, a bench was specially constituted on December 19 last year when the court had already commenced its winter vacation to hear a matter from the Allahabad High Court, where the Vice Chancellor of the Sam Higginbottom University of Agriculture, Technology and Sciences was directed to surrender.

 Apart from the above, there have been numerous instances where the bench of the Chief Justice of India has taken out of turn mentionings in matters of personal liberty, and passed orders protecting individuals from unwarranted arrests. It is not the purport of this response to list many such orders which have been passed, but had the author of the article in question undertaken a thorough statistical exercise, she would have certainly come across several such orders.

The takeaway from the above is that the doors of justice in the Supreme Court are always open, especially when it concerns the personal liberty of an individual. Whether a person succeeds or not in persuading a bench to grant an order depends on a complex mix of circumstances, especially the facts of each case, and certainly the Chief Justice of India cannot be blamed for orders passed by other benches of the court, since he is only the primus inter pares.

The article also goes on to glorify the emerging trend of browbeating judges by some practising advocates, which in my view is highly unbecoming of this profession. These attacks multiply in number, especially when any self-proclaimed “sensitive” matter is listed before a judge against whom such persons have preconceived notions. 

There are hundreds of lawyers in the Supreme Court who quietly go about arguing their cases before the benches to which such cases are assigned. It is not part of a lawyer’s duty to seek that his matter be listed before a particular bench, or that it be removed from a bench before which it is listed.

The Chief Justice, being the master of the roster, had recently responded to these unsubstantiated claims of certain matters being listed before certain honourable judges, stating that if a matter is listed before a judge, it is for the said judge to take a call. This is the correct position, and this practice has been followed since the establishment of the Supreme Court of India. The pressures on the judicial system are best understood by those in it. 

Another concerning aspect is the ill considered comment made regarding one of the sitting judges’ professional history of being the law secretary to a particular government in the past. Such remarks which have become frequent in the age of social media throw responsibility to the wind, and are often used to intimidate a judge who has been discharging her judicial functions for over 27 years. 

The people of India, through the Constitution, repose complete faith in the independence of a judge from the moment they take oath.

Targeting judges does little to nudge the discourse toward any kind of judicial reform and more toward a social media fuelled free-for-all. If conversations around the  judiciary have to be productive, they have to take into account legal specifics and be accurate which will lead to a better and complete understanding in the public domain. Any misleading critique of an institution falls in an area of absolute misinformation, which would lead to unfairly denigrating that institution.

The writer is a senior advocate at the Supreme Court of India.

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