‘Men may come and men may go, but I go on forever’ asserted Lord Tennyson’s Brook in 1886. A hundred and thirty eight years down the line, Dhananjay Yeshwant Chandrachud, Chief Justice of India, on the eve of demitting office wondered publicly how history would evaluate him. I leave it to the readers to view, and more importantly, read the comments posted by viewers too, at https://www.youtube.com/watch?v=pPbNTbyb-Vg.
I remember an episode of
Aap ki Adalat, on a TV channel, featuring Ram Jethmalani, erudite lawyer and
politician rolled into one. One specific response of his that I recollect
vividly is of him stating bluntly that he would not have employed Rahul Gandi
(spelling changed to differentiate this usurpers of the surname, Gandhi, of the
one revered as the Father of the Nation) even as a peon in his office. Wish the
eminent lawyer was alive to share his view on Chandrachud’s concern.
But here is my take on it.
DY Chandrachud was part of
the bench that gave the majority judgment, on 28 Sep 2018 in WP (C) 373/2006,
favoring women’s entry in Sabarimala. As
a layman I was shocked. But being literate, I looked up the Constitution itself
and learnt to my horror how the Constitution had been misinterpreted to give
this faulty verdict. I wondered why the
matter was decided under Article 25(2)(b) without the judges asking why this
article pertained to only Hindus and Hindu religious and charitable institutions.
Fortunately, some of such issues have found mention in the order dated 14 Nov
2019 in the review petitions filed. But
these have to be considered by a bigger bench and that is where it stands.
On a more detailed
analysis at http://www.vijayvaani.com/ArticleDisplay.aspx?aid=4849 (‘Nero fiddles while Rome burns’, 04 Nov 2018) a
reader had commented: It is the judiciary that is really on trial.
It seems to be controlled by the Deep State of unelected groups that are
pushing the agenda of the defeated Left-Liberals patronized by the Congress.
They will not go away soon.
Interestingly,
D Y Chandrachud castigated his father’s judgment in the notorious ADM Jabalpur
case, where it had been held that even right to life was not a fundamental
right during Emergency. Obviously such castigation, after almost half a century
of the gross injustice meted out to the then victims, can have only academic
value. But, importantly, it is worth noting
that Chandrachud Jr had not said anything about the Supreme Court bench, of
which his father was again a member, exonerating Mrs Indira Gandi in the
election malpractices case. Wasn’t the exoneration, based on a constitutional
amendment pushed through by the convict with retrospective effect, the most
heinous crime that a court could commit? Here is the relevant extract from a
report in the New York Times of 08 November 1975:
The verdict in favor of the Prime
Minister, handed down by a special panel of five judges, was based not on any
new interpretation of the facts of the case against her, but rather on a change
in the law under which she had been convicted of two electoral improprieties.
In language specifically tailored
to the circumstances of her case, the amendment provided, in effect, that the
things the Prime Minister was found to have done during the‐ election campaign
of 1971 were no longer illegal.
At https://en.wikipedia.org/wiki/Dhananjaya_Y._Chandrachud there are some ‘important’ cases of D Y
Chandrachud listed with a brief description too. They deal with right to
privacy (Justice K. S.
Puttaswamy (Retd.) and Anr. vs Union Of India And Ors), free speech (Indibility
Creative Pvt Ltd v State of West Bengal), personal liberty (Arnab
Goswami’s bail plea), gender justice (Sabarimala,
adultery, permanent commission for women in armed forces, sexual harassment at
work places), environment (Hanuman
Laxman Aroskar vs Union of India), labor (protections under Factories Act), constitutional issues (ordnances, Governor Vs Chief Minister, NCT,
floor test in assemblies, doctrine of legitimate expectation, issues pertaining
to the availability of oxygen supply, essential drugs and modalities for
vaccination during Covid 19, affirmative action, disability rights, commercial, insurance and
insolvency laws, access to and transparency in judiciary) and a few more.
A cursory
reading reminded me of the story of a student in Kerala narrated by one of his
teachers. The year was when the student was in the 10th Standard and
Hindi had been made compulsory. Finding the going tough, the student did what
he could do best. He learnt a paragraph by rote and reproduced it as answer to
all the questions during the examination.
Yes, Chandrachud’s judgments are full of terms like liberty,
equality, transparency etc etc. But how far did he walk the talk?
Just take the
case of transparency in the judiciary. Here
is an extract from the details given about the Supreme Court ruling in Central Public Information Officer (of the
Supreme Court) v. Subhash Chandra Agarwal:
Chandrachud also delivered a
concurring opinion in the case of the Central Public Information Officer v.
Subhash Chandra Agarwal where he agreed with the majority that the office of
the chief justice of India is a public authority and falls within the ambit of
the Right to Information Act 2005.
Chandrachud's opinion was widely discussed for evolving jurisprudence around
the balancing of the right to privacy and the public interest. His opinion was
also commented upon for expanding the ambit of the phrase 'public
interest' to include information 'on the
adequate performance of public authorities' which includes 'information on the selection of judges to
the higher judiciary which must be placed in the public realm'. While the
majority and the other concurring opinion applied the proportionality test to
balance the right to privacy and public interest, Chandrachud expanded the
application of the proportionality test to balance the rights of privacy and
information. (Emphasis
added)
It is surprising how the issue of the office of the Chief
Justice of India not being a public authority itself arose. Neither the Right
to Information Act, nor its rules give rise to even an iota of doubt on this
score. The fact is that the applicant, Subhash Agarwal, had just sought
information on the implementation of a decision taken collectively by the
judges of the apex court, a decade earlier, about judges submitting their asset
returns to the Chief Justice on assuming office. The claim of the CPIO had simply been that the
information is not held by him but by the CJI. The only question to be answered
by the CPIO was whether he had sought the information from the CJI to be
provided to the applicant. If he had not sought it from the CJI then the CPIO
becomes the defaulter. If he had sought and the CJI had not provided it, then
the CJI becomes the defaulter and it liable to be penalized @ Rs 250/- per day
of delay beyond the 30 days permitted to provide the information. Mind you, the
penalty on the CJI would have been in his administrative capacity and not
judicial capacity.
Further, when the returns of all other public servants are
published in the respective websites of the government, where does the question
of privacy for judges alone arise?
Incidentally, the remuneration paid to public servants is
required to be disclosed by the public authorities, suo moto. Even this has not
been done in the matter of the judges of the Supreme Court, for which the CJI, in
his administrative capacity, is responsible directly.
And horror of horrors, what has not been mentioned here is
that the order had provided discretion to the Public Information Officers to
demand the reasons for seeking the information. This, when Section 6(2) of the
Right to Information Act has explicitly stated that ‘An applicant making request for information shall not be required to
give any reason for requesting the information or any other personal details
except those that may be necessary for contacting him.’
I am among
those who are convinced that DY Chandrachud had taken our judiciary to new lows
in matters of reliability, credibility and integrity.
It began with a
petition filed in the Supreme Court against the appointment of D Y Chandrachud
as the Chief Justice of India. A report is available at https://swarajyamag.com/news-brief/plea-to-restrain-justice-chandrachud-from-taking-oath-as-next-cji-dismissed-by-sc-heres-what-the-petition-argued. It was dismissed by a bench headed by the
then CJI who had recommended Chandrachud as his successor. Without going into
any details, while the judge who recommended his successor hearing a petition
against it is morally wrong in itself, going by the truism in the dictum that
Caesar’s wife shall be above board, at least Chandrachud could have ‘recused’
himself from taking over the appointment.
DY Chandrachud
assumed office of the Chief Justice of India on 09 November 2022. A report in
The Hindu of 17 December 2022 informed its readers that ‘The oral announcement (of there being no vacation benches for winter
vacation) came a day after Law Minister Kiren Rijiju reportedly criticised the
"long vacations" of the court and the inconvenience it caused to
litigants.’ To be realistic, the law minister was simply conveying the
growing demand of the people for prompt disposal of cases and the delay caused
by long vacations, which even students do not enjoy these days. If anything,
the incidence exposed the new CJI’s contempt for the people and their elected
representatives.
Fairly early in
my pursuit of judicial reforms, I had discerned one fact about judgments. Quite
often they begin with grandstanding, quoting scriptures and thought leaders,
then facts are recorded almost correctly, deductions become hazy and
conclusions, including decisions, are out of the world. Take the cases of
Electoral Bonds and the appointment of the Election Commissioners.
Without going
into the specifics of the Electoral Bonds, one can easily presume that it is
all about transparency. While election reforms are a subject by itself,
election funding had been identified as a hotbed of corruption. So, to the
layman, electoral bonds were better than the earlier anonymous and unaccounted
system of funding of election. In fact, there was this case under the Right to
Information Act where some political parties were ordered to provide
information about their accounts but apparently did not get implemented. Some
important information is available at https://adrindia.org/content/political-parties-under-rti#roadmap. An order, dated 16 March 2015, by a bench of three information commissioners has
recorded the following :
the
respondents are not in compliance with the Commission’sorder of 03.06.2013 and the RTI Act. The
respondents, as public authorities, have
not implemented the directions contained in the Commission’s order and there is
no evidence of any intention to do so;
But more
interestingly, a report, dated 03 April
2024, at https://timesofindia.indiatimes.com/india/what-tax-exemptions-do-political-parties-enjoy/articleshow/108989036.cms informs us that the Congress Party had
received three notices under the Income Tax Act totaling up to a demand of Rs
3,567 crores. There is one dating back
to assessment year 1994-95
(FY1993-94), where the exemption was denied and a tax demand of around Rs 25
crore was raised. During subsequent appeals, the demand came down to around Rs
11 crore and a challenge is currently
pending in Supreme Court. With interest, the demand now adds up to Rs 53
crore. Cases of BSP and Janata Party (Subramanian Swamy merged it with BJP in
2013) are also clubbed with this case where a decision is pending since 2016.
In the case of
appointment of election commissioners, a constitution bench of 5 judges heard
the matter. Those who wondered why the Chief Justice of India did not head this
important bench would have got their answers when the judgment was delivered.
Yes, the order directed that the election commissioners be appointed on the
recommendation of a committee comprising the Prime Minister, the Leader of the
Opposition and the Chief Justice of India. One did not know whether to laugh or
cry at the attempt of the judiciary, read the Supreme Court, to usurp more
powers of the Executive. From Kesavananda Bharati, through the Judges cases, to
Namit Sharma the efforts were many and most of them were successful too, to the
detriment of democracy. Fortunately, the government woke up in time and
legislated against this decision, which has been challenged in the Supreme
Court but no stay has been granted.
The
credibility, reliability and integrity of the apex court touched a new low when
the CJI constituted two benches back to back, on a holiday evening, to grant
bail to Teesta Setalvad. For a CJI, who has been seen as most loquacious and vociferous
about equality and liberty, this was an unforgivable act of abuse of authority
given the fact that lakhs of litigants are languishing as under trials in
overcrowded prisons. The opposing verdicts of the first bench of two judges had
me asking why then should the decision not be in favour of the high court
judgment itself. How right the former Law Minister Kiren Rijiju was when he had
said that the politics of the politicians was more transparent that those of
the judges.
Suffice to say
that the judiciary is not only the most failed organ of the State but also an
absolutely failed one. D Y Chandrachud had a good 2 year tenure to do some good
for making the judiciary more accessible, efficient and transparent. But he has
failed on all scores. It was a lot of talk and zero matching action. And people
are aware. Social media is the real liberator. Here are two screen shots of two
tweets, one of 23 Jul 23 and the other of 19 Apr 2022:
God save our
country from its judiciary.
P M Ravindran, raviforjustice@gmail.com 08
Nov 2024
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