Monday, February 26, 2024

Miles To Go…

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With around a year for Dr DY Chandrachud’s term to end, it’s time for a report card on his achievements and failings. He came with dreams and a passion to set the house in order. How successful was he?

By Sanjay Raman Sinha

As Chief Justice DY Chandrachud completes a year in office, it’s time to take stock of his hits and misses. For a chief justice who started with an advantage of a two-year term and lots of expectation, the first year has been a mixed bag.

The chief justice started with many plans as he took the baton from his predecessor Justice UU Lalit. Three main areas of concern for him were: digitalisation of courts, improvement in the listing system and speeding up of judges’ appointment. However, the core area where his performance was judged by many was his relationship with the government.

The soft spoken Harvard University alumni had a tough time balancing his equation with the government. The apparent bonhomie and camaraderie with the previous law minister, Kiren Rijiju, deteriorated over sharp remarks by the latter and acrimony settled in the relationship. The consequent clashes over judges’ appointment were a natural corollary.

When the centre thumbed down the recommendation for five judges for the apex court, CJI Chandrachud opposed the move. One of the names was that of capable senior advocate Saurabh Kirpal, who has a different sexual orientation. His name never saw the light of day. The face-off on appointments continues till this day with the judiciary accusing the government of “cherry-picking” judges’ names and withholding assent to many. In fact, in January, the apex court entertained a contempt plea over delay in notifying the transfers of judges. In September, the Court decided to monitor the delays by the centre in appointing judges. During this time, the Court said that there were “issues of faith” between the judiciary and the executive due to the delay in appointments. 

The controversies are not limited to the appointment of judges alone. Vice-president Jagdeep Dhankhar had questioned the validity of the Kesavananda Bharati decision. This means that Parliament should have the sovereign right to amend the Constitution even if is encroachment on the basic structure.  

The functioning of the collegium system was also strongly questioned by the government. The top court reminded it that the collegium system was the law of the land and must be followed by the government. 

Listing of sensitive cases is also in the eye of the storm. After apparent arbitrary reassignment of cases to other benches in disregard of established protocol, senior advocate Dushyant Dave shot off a letter to Chief Justice Chandrachud registering his sharp protest. Dave appealed to him to look into the matter as he was the “master of the roster”. Therefore, the final responsibility of case allocation and reassignment is with the CJI.

The rulebook is clear about seniority factor in case allocation. It says: “Save in case of a single coram, wherever a main case or application could not be listed before the first coram, it shall be listed before the second and then third coram, wherever applicable, and, if available, in seniority.” However, it was alleged that sensitive matters involving “human rights, freedom of speech, democracy and functioning of statutory and constitutional institutions” were assigned to benches in disregard of coram norms.

Five cases which stand out are Umar Khalid’s bail plea, then Tamil Nadu Chief Minister Edappadi K Palaniswami’s highway tender scandal, skill development case against Chandrababu Naidu, disproportionate assets case against deputy chief minister of Karnataka DK Shivakumar and medical bail plea of jailed Tamil Nadu minister Senthil Balaji.

This row over listing of cases begs the question whether the secretary general of the Supreme Court registry is not reporting to the CJI on this issue. Is the CJI not communicating his listing orders to the secretary general? Have the lines for communications broken down? Is there a need to install a more formal system of listing and more transparent registry operations? 

Registry revamp was high on the agenda of at least two chief justices: Justice UU Lalit and Justice Chandrachud. Computerised listing and other initiatives were undertaken. But like other administrative initiatives, this also suffered setbacks. Listing of cases is important not only because a furore had been raised in the 2018 judges’ revolt and thereafter, but also because a supposedly wrong/biased listing raised the bogey of government interference in the judiciary, especially in politically sensitive matters. It is incumbent on the chief justice to clear the air and make required corrective changes.

The tenure of CJI Chandrachud is also important because the hearing of constitutional benches which was started by Justice Lalit is being continued. Many sensitive political cases which were on the backburner have been put on the hearing mode. Some cases have been heard and decided and some are yet to come up. Some verdicts have come up for criticism.

The demonetisation verdict effectively watered down the matter. Of the five-judge bench, four voted in favour of upholding demonetisation and one dissented. Dissenting judge Justice BV Nagarathna held that the Parliament should have discussed the law on demonetisation and it shouldn’t have been done through a notification.

The tussle for power between the government of Delhi and the centre in the Government of NCT of Delhi vs Union of India case was decided by the Court in favour of the Delhi government, but the verdict was overturned by an ordinance. 

Though the sedition law was struck down, the government is all set to bring an equally tougher law via the Bharatiya Nyaya Sanhita Bill, 2023, or an updated version of the Indian Penal Code which the government seeks to table in the current winter session.

Initiating the same sex marriage hearing on an urgent basis was also seen by many as a mis-prioritisation, especially when more politically sensitive cases are in waiting.

Justice Chandrachud is a votary of technology and initiated many measures to upgrade the court system electronically. He prides himself trying to get a paperless office. “I don’t receive any physical files from courts. My chamber is paperless,” he once asserted proudly. He affirmed that digitisation of courts will help crisis-proofing the justice delivery system and ensure that it is accessible to all. Vernacularisation of court proceedings is also on the cards. 

These are challenging tasks and no clear roadmap is available. Lack of an action plan makes all this sound like mere platitude.

In the digitisation process under the electronic Supreme Court Reports (e-SCR) project 34055, verdicts have been placed online for free access to one and all and multilingual data is being put online. Live hearings of constitutional benches have been initiated and High Courts routinely live stream their proceedings. Hybrid hearing is the order of the day.

However, the structural problems of the judiciary and law dispensation persist. Pendency stills bears heavy on courts. The Supreme Court’s role as an appellate court versus a constitutional court is also to be sorted out. Bail denial is often being seen as an infringement of human rights. Provisions in laws like PMLA, UAPA are yet to be rationalised in line with humanistic jurisprudence which the CJI espouses.

The chief justice is poetic about his endeavours. He quotes couplets in his speeches. He espouses sundry issues and makes them a cause, whether it is CLAT in Hindi or better salary for junior lawyers.

All these sound good. But as a mammoth judiciary creaks under the weight of problems and justice is continually delayed, much is yet expected from the chief justice whose two-year tenure ends on November 10, 2024.

To sum up the predicament, poet Nafas Ambalvi’s couplet is apt: “All the witnesses were in favor of me, But my statements itself were against me.”

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