A LARGE number of critical appraisals and commentaries have been written on the occasion of the retirement of Chief Justice of India (CJI), D Y Chandrachud. This is but natural as Justice Chandrachud is considered to be one of the most consequential chief justices of the Supreme Court in recent years. Moreover, he had a two-year tenure, which is longer than any other chief justice in the past two decades.
The entire body of his work as chief justice must be taken into consideration to correctly assess his role as the head of the judiciary that is ordained to safeguard the Constitution and the rights of citizens. While doing so, the background in which Chief Justice Chandrachud exercised his judicial and administrative responsibilities should be kept in mind. The Modi government, in its second term in office, was pushing ahead with its aggressive efforts to fulfill the Hindutva agenda, which was subversive of the Constitution and the fundamental rights of citizens. It is in this context that Chief Justice Chandrachud’s judgments on Constitutional issues and the majoritarian onslaught should be viewed.
Here two judgments – one as a judge of the court and the other as chief justice – provide the acid test. Justice Chandrachud was on the five-member bench, which gave the verdict on the Ayodhya dispute. The judgment which he authored handed over the entire disputed area where the Babri Masjid stood to the Hindus for the construction of the Ram temple. This judgment was based more on religious sentiments and faith rather than the evidence and facts on the ground. Further, it gave such a verdict despite acknowledging that the demolition of the Babri Masjid was an unconstitutional and egregious act.
It is this judicial verdict that legitimised the claim of the RSS-Vishwa Hindu Parishad and fulfilled one of the core agenda of the BJP. That this was not a one-time aberration become evident when as CJI, Justice Chandrachud opened the way for reopening of the Gyanvapi mosque case in Varanasi. Disregarding the protection of Religious Places of Worship Act, 1991, which prohibits reopening of such cases, on the dubious ground that Hindus were not seeking to change the character of Gyanvapi mosque only to determine its religious character, CJI Chandrachud permitted the suits to go on. This has handed the Hindutva forces the licence to rake up the disputes in Varanasi and Mathura.
The other major judgment given by a bench led by CJI Chandrachud is on the abrogation of Article 370 and the dismantling of the state of Jammu and Kashmir. The judgment upheld the unilateral executive power exercised to amend Article 370 since the Constituent Assembly of Jammu and Kashmir was no longer in existence. On the downgrading of Jammu and Kashmir to union territory through a process of violating Article 3 of the Constitution, the judgment ducked the issue and accepted the assurance of the State that at some future date, the statehood of J&K would be restored. The only sense that can be made of this judgment is that it somehow seeks to endorse the executive’s arbitrary action to nullify Article 370. It would be pertinent to note that abrogation of Article 370 was another core issue in the BJP-RSS agenda.
There are other aspects of Chief Justice Chandrachud’s tenure concerning the `master of the roster’ duties and the functioning of the collegium system. Here too, there is a clear discernable pattern. The allocation of cases, which concerned the individual liberty of citizens such as those incarcerated for long years in the Bhima Koregaon case and the north-east Delhi communal riots show a deliberate design of referring such cases to a specific bench, where the judges concerned have a conservative view on matters of civil liberties and granting bail. As for the collegium’s work, the main feature has been ceding control to the executive on the appointment of chief justices of High Courts and selection of judges.
But apart from all these, what is striking is that an erudite judge, who was expected to be a firm defender of individual liberties and Constitutional principles has shown up to be someone who put his religious faith above fealty to the Constitution and its values. Chandrachud, at the fag end of his tenure, stunned many people by admitting that he had prayed to the deity for a solution to the Ayodhya case. Here is the author of the judgment confessing that the verdict was based not on the Constitution and law but on divine intervention.
On an earlier occasion, Justice Chandrachud had told a gathering of lawyers after visiting the Dwarka temple in Gujarat that the saffron dhwaj on the temple stands for the flag of justice. What all this reveals is not only about the Chief Justice of the Supreme Court, but the growing ethos within the higher judiciary.
The one decade of Modi’s rule has seen the spread of the Hindutva ethos amongst the echelons of the higher judiciary and the legal fraternity. Glimpses of that have openly surfaced in recent times. A judge of the Calcutta High Court, on the day of his retirement, declared his lifelong bond with the RSS and the debt he owed to the organisation. Another High Court judge, Abhijit Gangopadhyay, resigned a few weeks before the Lok Sabha election and within a few days became a BJP candidate and was elected to the Lok Sabha.
How the worldview of some judges is shaped by Hindutva can be seen in the remarks made by a two-member bench of the Madhya Pradesh High Court in July this year. Disposing of a petition of a retired government employee on the ban on employees joining RSS, the court in its order, after the RSS ban was withdrawn by the centre, stated that a “renowned organisation” like the RSS was “wrongly placed amongst banned organisations in the country”. Because of this mistake of the central government, for five decades, “Aspirations of many central government employees of serving the country in many ways, got diminished in these five decades because of this ban”. So, according to these learned judges, to serve the country one must join the RSS.
The Caravan magazine, in its October 2024 issue, has carried a revealing article about how the legal front of the RSS is increasing its influence within the higher judiciary. The Akhil Bharatiya Adhivakta Parishad is the lawyer’s front of the RSS and it is from the ranks of this organisation that more and more legal officials like advocate generals and judges are being appointed. The article points out that out of the 33 sitting judges, at least nine have attended one or more of the Parishad’s events as chief guests.
The record of Chief Justice Chandrachud is a cautionary tale that majoritarian sentiments are finding reflection in the judicial pronouncements at the highest level. Overall, it is a warning of how far the Modi government has helped the RSS advance in infiltrating the higher judiciary.
(November 13, 2024)
