By Inderjit Badhwar
The ascension of any judge to the top of the judiciary is a momentous occasion. And it’s lonely out there at the top. But moments are fleeting. They evanesce. Before you know it, they’re gone. Either you’ve seized them or you haven’t. At the end, all that’s left is a lifetime to reflect on whether you stood up to be counted or whether you chose to ignore the call that comes once in a lifetime to a chosen few to rise above and transcend the temptation to remain in the comfort zone of safety and mediocrity.
And so, at the age of 62 years, 11 months, and 29 days, Justice Dhananjaya Yashwant Chandrachud will also be the youngest CJI of the last 10 years. For the next two years, this debonair, scholarly, judicial luminary, known for his erudition, will navigate the nation’s juridical minefield as master of the roster.
These are not the worst of times. But they are not the best of times either. My hunch, as I wrote two years ago on Republic Day, is that India survives the worst and emerges stronger. After our bloody Partition in 1947, what emerged was a stronger India, aflame with poverty and exploitation, yet led by wise men and women who kept anarchy and class warfare at bay with minimal repression.
There were famines in the early years, caste discrimination, misogyny, patriarchal hegemony, mistreatment of widows, and outbursts of religious savagery…but the idea of a constitutional India guided by principles of liberty and the rule of law held.
But as always, these are trying times that test the souls of men and women. The larger portion of this special issue of India Legal is devoted to giving our readers some scholarly insights into the life and times of the new CJI and his challenges. Among the writers are giants like the redoubtable Professor Upendra Baxi and the iconic former Indian Chief Justice MN Venkatachaliah.
I cannot match their unique perspectives. But what I can provide is a contextual approach from the viewpoint of a journalist who has watched closely the interplay between the three branches of government over several decades. Since I reported many of these developments at firsthand, I am going to rely heavily and quote verbatim from some of my own stories penned while I headed both the India Today and India Legal editorial teams. First, because I cannot put these thoughts any better now than I did then, and secondly, because there’s a deja vu. Characters have changed. Scenarios have not. And the basic flaws I sense in our governmental architecture and arrangement appear to be hydra-headed.
Once again, even as the ink was dry on the paper confirming Justice Chandrachud’s succession, the Executive branch was reiterating its decades-old call for changing the Collegium system that gives the Supreme Court a measure of autonomy in judicial appointments, as well as raising the issue of judicial “interference” in the affairs of the Executive. And this, despite the flak the higher judiciary is facing for leaning heavily in favour of the State apparatus in politically sensitive cases.
The bugle, it seems, has already been blown.
This brings me to the centrality of issues that are the subject of this essay. Many things have changed since January 26, 1950, when our Founding Fathers gifted us this Republic. But have we been able to keep our Republic? While we have established our national government and fundamental laws, we need to examine whether the separation of powers between the Executive, Judiciary and Legislature operates as it should. This is a critical system of checks and balances that ensures the sovereignty of the people and accountability of the government.
When our Founding Fathers adopted the parliamentary Westminster system from England, it may have been suitable at the time. But today, as the government has spread its tentacles into every aspect of our personal lives, the challenge is to keep Executive excesses in check. It is not possible when the Legislature—our Parliament—is a slavish extension of the Executive. The minister who is in the Executive branch cannot be expected to police himself when he is simultaneously a legislator and also in charge of the civil services. Both, under the doctrine of separation of powers, are expected to be watchdogs over the Executive in order to ensure that it carries out legislative mandates and does not exceed the authority given to it by Parliament.
It is also incongruous when, under an archaic British law still in the statute books, a state government can order the dropping of criminal charges against its legislators and supporters stemming from violations when its members were not in elected office.
We need to seriously look at constitutional changes that will guarantee the independence of legislators as powerful guardians against fraud, waste and corruption. How we can do that is another story. But for the time being, the Judiciary seems to be playing that role. Or given recent developments, is it?
Social tensions and internecine hatreds and violence and bigoted resistance to free expression and lifestyles are mounting. India’s venerable Supreme Court has mostly risen above politics. It has tried to grapple with Executive excesses such as the misuse of Article 356 and assaults on the right to privacy.
But in this surcharged atmosphere of the politicisation of the steel frame of Indian governance, exemplified, at one point, by politicians calling for the impeachment of a sitting chief justice, will India as a nation rise above its baser instincts on the strengths of the common sense and goodwill of its own people?
As I observed in one of my essays in India Today way back in 1996, all societies, whether they are monarchies or dictatorships, have a legal order—rules of civilised life such as not stealing, honouring contracts and settlement of property disputes that are backed by authority or sanction. But not necessarily a constitutional system that is based on an order of checks and balances between the Executive, the Legislature and the Judiciary.
The concept of accountability of the Executive dates back to the Magna Carta. In this scheme of ordination in a liberal constitutional system, Parliament formulates policies and is also the judge of their wisdom and efficacy. The Executive implements them and interprets the public interest, while the Judiciary ensures their constitutionality and legality. It does not as a rule concern itself with the wisdom or popularity of the policy. That is ultimately left to the people of the land.
I wrote this in the context of commenting on the Jain-Hawala scandal that rocked PV Narasimha Rao’s government in the late 1990s. The “Jain diaries” contained the names of the who’s who of India’s ruling establishment—including Rao’s ministers—who allegedly took bribes in return for political favours. When the CBI and related investigative agencies began dragging their feet on the issue, the Supreme Court swung into action to ensure there was no cover-up.
“For the Supreme Court of the land to be virtually dictating terms to the CBI in the hawala case—in other words, telling the Executive how to do its job—is a reflection of a systemic breakdown of the other branches of the Government,” I wrote in India Today.
Political commentator Cho Ramaswamy observed then, if there is a “hero” in this game, it is the Judiciary. And the presumption of legitimacy of judicial intervention is also a presumption of illegitimacy of the Executive for failing to reach constitutional goals in a society in which corruption is no longer an aberration, but rather the rule.
All people need something to guide them. In their personal lives, they may look to religion and religious books. In civil society, the Constitution has a life of its own, but it speaks only through institutions. And when one institution breaks down, another becomes more powerful—if Parliament fails, the bureaucracy becomes more powerful; if the Executive is weak, Parliament assumes a stronger role. If both lose their credibility by abdicating their responsibilities, then the courts begin concerning themselves not only with policies, but also examining their wisdom and need.
The ’90s are replete with the interference of the Supreme Court in areas where judicial angels had feared to tread in the past—raising the retirement age for judges by what amounted to a virtual judicial fiat, fixing quotas and even fees for medical colleges. In the normal course of events, it would have been unthinkable for the Supreme Court to be summoning the head of the CBI to report on the hawala inquiry even before the designated trial court had taken cognisance of the final report.
I noted in that article in 1996 that what the Supreme Court of India is doing for the first time is not without international precedent. In 1993, Italian judges became public heroes following the arrest of more than 1,000 people, including cabinet ministers, in a kickback scandal involving organised crime. Similarly, heads rolled in France, Germany and Spain. And last year, former South Korean president Roh Tae Woo was jailed on charges of bribe taking. In many of these countries, “people’s movements” backed the Judiciary when it took the Executive to task.
In India, public opinion is slow to crystallise on corruption charges; but once the enthusiasm builds up, there’s no stopping it. Bofors caught fire because it involved dalali on a matter of national defence. But here, too, while a prime minister and a political party were punished at a political level, investigative agencies and the Judiciary appeared indifferent to the probe. In that sense, judicial activism on the hawala scandal is a belated awakening to the fact that VIPs escape probes and charge sheets no matter how serious the offence. Call it collective penitence if you will.
The concept of insaaf (justice), I wrote, is deeply embedded in the Indian psyche. And whenever there’s a convergence of public opinion and judicial statesmanship, the Judiciary takes upon itself the task of examining Executive policies and the general direction of the nation.
The argument about judicial dictatorship or the danger of judicial tyranny is a valid and legitimate concern. After all, what checks are there on a Judiciary that runs amok or decides to use the CBI as a private gestapo? For there is only a thin dividing line between exercising legitimate authority and untrammelled power.
Technically, the checks are inherent in the judicial process under which the process of reasoning, proper hearings and “rationality” are obligatory—that decisions must be well-reasoned. That judgments must support themselves on neutral principles, that they must be uncontrived. And the efficacy of a judicial order should depend on moral sanctions and restraint and not on coercion.
Justice Chandrachud has been universally applauded for his refined intellect, his modernity of outlook, expanding the rights of women and speaking out on individual liberty, the right to privacy and de-criminalisation of homosexuality.
The bouquets he receives outweigh the brickbats. But the brickbats also fly his way—often from his friends and admirers—who fail to understand his stand on politically sensitive cases such as the death of Judge BH Loya, the contradictions in the final Ayodhya judgment allotting the disputed land to the parties found guilty of illegal demolition or the Hadiya case in which a national security probe was ordered in a love marriage.
It is not for me to advocate in this space how the nation’s new chief justice should conduct or rule on any specific case, especially sensitive and challenging constitutional issues that are pending—issues that test the very fabric that binds this land into a nation.
The issues I have raised here are recurring institutional concerns and the people responsible for dealing with them and resolving even a few of them will themselves become institutions.
The antidote to a constitutional system that threatens to swing out of balance is not just the appearance of honesty and integrity, but an honest and aggressive display of it. As Justice JS Verma so eloquently observed: “Keep the top clean and whatever trickles down will also be clean.”