Melukote is a small
village about 50 kms from Mysore. Its inhabitants, mostly Mandyam Iyengars, do
not celebrate Diwali, one of the most important national festivals of India,
that celebrates victory of the good over evil. It was in 1790 that on the
Diwali eve that Tipu Sultan killed their ancestors- men, women and children,
sparing none.
Today, when D Y
Chandrachud assumes the most powerful office of the nation as the Chief Justice
of India, I remembered Melukote alongwith Sabarimala.
It was four years back
that Chandrachud was part of a bench of 5 judges of the apex court that had
delivered the infamous verdict permitting women of all ages in Sabarimala,
overturning the decision of a bench on the same issue delivered more than a
decade earlier. Even in the majority verdict that permitted women of all age
groups to enter the temple, it is pertinent to note that the lone dissenter was
the lone woman judge of the bench.
I remember one of the
biggest mobilization of women protestors in Kerala, was in the aftermath of
this verdict. There were also reports of Hindu diaspora all over the world
extending support to these protests. Shockingly, even when appeals had been
filed for review, the court not only deferred them but explicitly stated that
there is no stay on the order, leading to a period of great turmoil in the
state that can be compared with the atrocities committed by the authorities in
the northern parts of the country during the Emergency days. If media reports
are to be believed, more than 40,000 cases were filed against 60,000 odd
devotees protesting to defend their faith.
Being a layman, but
adequately literate to read and understand the Constitution, written in
English, I believe that even hard core rationalists cannot deny that if any intervention
had to be made by the court it was to be made in the matter of Article 25(2)(b)
by making it non-religion specific and not to re-interpret Article 26 in a
whimsical manner.
While the rights under
Article 26 is provided to every religious denomination, the mandate of Article
25(2) (b) is to throw open Hindu religious institutions of a public character
to all classes and sections of Hindus only. Interestingly, Sabarimala is one of
the rarest temples in India where not only men but women of all hues,
irrespective of their caste, creed or religion, are allowed entry, except for
those in a certain age group. I am shocked at this being interpreted as gender
based discrimination.
Compounding the matter
further was a report that the Kerala High Court had dismissed a petition, post
the controversial Sabarimala verdict of the apex court, seeking permission for
entry of muslim women in their institutions of worship.
Of course Chandrachud was
only one of the 4 judges who gave the majority verdict in favour of women of
all age groups entering Lord Ayyappa’s temple at Sabarimala. But what has been
worrying me is his inability to walk the talk while talking too much all the
time.
Take the case of granting
bail to the son of Shah Rukh Khan. Chandrachud almost breathed fire when this
celebrity kid, charged in a drug case, was granted bail and the under-trial was
not released within 24 hours. Given the fact that almost 75 percent of the inmates
in our jails are under-trials and many of them have been there for more periods
than they would have been sentenced to had they been convicted, can you blame
anybody who would doubt the wisdom of this judge in balancing idealism with
pragmatism?
A report, ‘A Future CJI's Empty Rhetoric, Woke
Liberalism And Why We Should Worry’, dated Jul 14, 2021 at https://swarajyamag.com/ideas/a-future-cjis-empty-rhetoric-woke-liberalism-and-why-we-should-worry states: Justice
Chandrachud may be the doyen of India’s Lutyens media and Left-liberals, but it
seems that he is planning to introduce his own ideas of what constitutes
justice, using his own lenses, and those of legal luminaries in the Christian
West.
Also, at an Indo-US conference on legal ties, Justice Chandrachud, while
correctly talking about the need to avoid using terror laws to stifle dissent,
made unwarranted remarks about how he sees justice being delivered. The Supreme
Court, he said, should play the role of a “counter-majoritarian institution”,
and it was its duty to protect socio-economic minorities.
I had posted the following
comments:
Yes, Criminal, anti-terror laws should
not be misused to quell dissent. But the judiciary can and will use contempt of
court law to even send high court judges who are whistle blowers to jail.
Recollect the case of High Court judge Karnan. He not only did not get his
grievances addressed, forget redresssed, he was sent to jail for 6 months under
contempt of court laws.
Chandrachud has stated another truth
without making it explicit. He has said 'it’s the duty of the court to protect
the rights of socioeconomic minorities' Thank God he has used the term socio
economic minorities, instead of weaker and marginalised sections of the society.
This is in keeping with the belief that 'truth will out'. Because it is openly
visible that the courts do indeed protect the rights of socio economic
minorities. Only thing is that these minorities are the real minorities at the
top of the ladder both socially and economically. If you still can't see the
facts for what they are, then ask yourself why are cases against Raja,
Kanimozhi, Sonia, Rahul, P Chidambaram etc not progressing for so many years
now. Also ask, why are the poor accused languishing in jails as undertrials,
mostly for periods longer than for which they would have been sentenced to if
convicted.
In my critique, Judicial
Perfidies-23, I had dealt with a petition, seeking not to appoint Chandrachud
as CJI, sent to the then CJI on 04 November 2022, through e mail. So I wouldn’t
go into the details here. However, I had stated that While we should be thankful that the apex court did not repeat the faux
paus as in the case of a former Chief Justice of India accused of molesting a
woman, I find there are reasons to go a little deeper into the matter than
swallow, hook, line and sinker, whatever the reasons for the dismissal, as
given by the court.
The faux paus I was
referring to was of course about the CJI himself chairing the bench that was
convened first to consider the allegation against himself. In this case, while
it was not Chandrachud who presided or even participated in the bench that
heard the petition, there was still impropriety. This was because it was the CJI, who had recommended
Chandrachud as his successor, who headed the bench that decided the petition
seeking to bar Chandrachud being appointed the CJI.
Again, I must confess my
ignorance of the intricacies of law but I am only comparing reports that
informed the ordinary citizens of various judges excusing themselves from
benches on grounds that they had dealt with the issues under consideration of
the bench under different circumstances/roles.
There have been many
eulogies published about the newly anointed CJI. Not surprising either. Among the many, I found the following two
interesting:
‘Action sought against
lawyer who alleged Justice Chandrachud passed orders to help his son's client’, Oct 11, 2022 at https://www.indiatoday.in/law/story/action-sought-against-lawyer-alleged-justice-chandrachud-passed-orders-help-son-client-2283700-2022-10-11 and ‘Bar Council of India responds to allegation
against Justice DY Chandrachud’, Oct 8, 2022 at https://www.indiatoday.in/law/story/bar-council-of-india-responds-over-allegation-against-justice-dy-chandrachud-2282852-2022-10-08.
The report dated
11/10/2022 states that the Bombay Bar Association has sought strict action against Pathan and those
associated with him in preparation of the complaint against Chandrachud
being appointed as CJI. About the
allegation that Chandrachud had passed an
order in a matter which was allegedly connected to a matter where his son
Abhinav Chandrachud appeared, the BBA resolution has stated “There is nothing on the record to
demonstrate the connection or anything to indicate that the Judge would have
known of any connection,”. Quite
possible. There could be no record
to indicate that the judge would have known of any connection. But the Bar
Council Rules are clear and the administrative order of Binod Kumar Roy, Chief
Justice of the Punjab and Haryana High Court restricting relatives of
certain judges from appearing before
them was also clear and logical. (See ‘Judge Dread’ at http://www.outlookindia.com/article/Judge-Dread/225624.) Since it has been analysed in fair details at
Judicial Perfidies-23 I shall refrain from delving into it here.
The report dated 08/10/2022 is also of the same genre. The Bar Council has stated that it has thoroughly examined the contents of this 165-page long letter and it finds that it is nothing but a scurrilous and malicious attempt to interfere with the functioning of the judiciary and the administration of justice. It has gone on to state that No details of Pathan are furnished in the complaint, no address or nature of body this man claims to represent is there. In this context there is only one question I would like to pose: without even such basic information about the petitioner, how did the petition get filed in the apex court at all? Or is this a different letter and the Bar Council did not have access to the petition filed, which, by the way is 764 pages long and is available at FINAL WRIT FOR UPLOAD.pdf - Google Drive.
Let me narrate here one of
my own experiences with the Bar Council of Kerala.
In the early 2000s had
pursued three issues, in one complaint against the railways, with the then
Consumer Disputes Redressal Forum of my district. The issues were:
(a)
declaring certain trains as superfast
and charging the passengers/ consumers
Superfast Charges without providing any additional facilities/ savings in time
(without any doubt a deficiency in service as defined in the CPA, Sec 2(g), (o)
and (r)(ii)).
(b)
showing
inflated/false distance (1485kms for an actual distance of 1197kms!) on
the ticket and collecting fares for the inflated/false distance (again a case
of outright cheating and falling within the purview of the CPA, Sec 2(g), (o)
and (r )(i)) and
(c) levying charges for facilities NOT used
by the passengers under the Tatkal services, in that they apart from charging
Tatkal Charges also insist that the passenger purchase tickets from the
starting station of the train to its destination even when the passenger has to
travel only between intermediate stations enroute (Sec 2(nnn) of the CPA).
The Forum dismissed the
complaint after 8 months stating that it does not fall within the purview of
the Consumer Protection Act and directed me to pursue it with the Railway Rates
Tribunal. The RRT, Chennai replied that it does not fall within its
jurisdiction either.
I had complained against
this decision to the Bar Council of Kerala. The respondents were the advocate
who had represented the Railways and the law qualified member of the Forum. I
was asked to submit 30 additional copies (!), which I did. I did not get any
response from them for a long time. Finally, through the RTI Act route, I got
the copy of the decision which had simply stated that the complaint has been
dismissed.
I still keep wondering
about the need for 30 copies of the complaint. Even the largest bench of the
apex court, to the best of my knowledge and understanding, has been only of 13
judges in the Kesavananda Bharti case of 1970. (The case is also known as the
Fundamental Rights Case. The court in a 7-6 decision asserted its right to
strike down amendments to the constitution that were in violation of the
fundamental architecture of the constitution. It is a different thing that the
same court, through a series of judgments later, violated this decision while
usurping the role of the Executive to appoint and transfer judges to our higher
judiciary.)
I shall conclude this part
by quoting Chandrachud himself, as reported at https://www.theweek.in/theweek/current/2022/11/04/justice-d-y-chandrachud-is-known-for-giving-law-a-human-face.html (‘Justice D.Y. Chandrachud is known for giving law a
human face’, Issue Date: November 13, 2022):
▸ “We will not adjourn the matter. We
don’t want the Supreme Court to be ‘tareekh pe tareekh’ court. We want to
change this perception.”
▸ “It is well for a judge to remind
himself that flattery is often the graveyard of the gullible.”
▸ “History and contemporary events across
the world are a reminder that blackouts of information are used as a willing
ally to totalitarian excesses of power. They have no place in a democracy.”
▸ “The essence of judging is compassion.
You take out compassion from judging, and you will be left with only the husk.”
While the above quotes are
self explanatory, I am looking forward to our new Chief Justice walking the
talk, particularly in the manner he is going to curb tareekh pe tareekh, complying
with the mandatory disclosures under the RTI Act (at present the apex court web
site has not disclosed the information under Sec4 (1)(b)(x)- the monthly
remuneration received by each of its officers and employees, including the
system of compensation as provided in its regulations- in respect of judges)
and amending the Court’s RTI Rules to provide information on the judicial side
too under the RTI Act and in dealing with the poor under-trials in our jails.
Wishing him all the best
in his promised endeavor to bring a semblance of law and order within the
judiciary.
P M Ravindran/ raviforjustice@gmail.com 09 November 2022
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