Monday, December 4, 2023

Great Expectations

The new CJI has made an indelible impression as an academic scholar and was part of benches which enhanced jurisprudence. His subtle but firm leadership will be a great demosprudential asset.

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By Prof Upendra Baxi

India had, in 75 years of Independence, 15 illustrious prime ministers. Only the 13th served for 16 days and many did not even complete 365 days (which include the 2nd, 3rd, 4th, 7th, 10th, 11th, 12th, 14th and 16th). Only three prime ministers (the 1st, 17th and 18th) served two terms. Only one prime minister (No 6) served for two years and 126 days, exceeding the tenure of Dr DY Chandrachud, who will be the 50th chief justice on November 9, 2022.

What, if anything, do these statistics show? For one thing, the lack of gender parity: India had only one woman prime minister, whereas, for the first time, the elevation of a woman chief justice of India (CJI) will occur in 2027 for a brief period. Thus far, the Supreme Court of India had only eight women justices; three are presently on the High Bench. One of the main expectations is that the new CJI will be able to persuade, as a matter of high priority, the judicial collegia and the Union of India (UOI) in ensuring gender parity in the Supreme Court and High Courts.

The second thing that emerges from this data is the difference between leaders of the executive and legislative power and the wielders of constitutional judicial power. Whereas Justices must superannuate upon reaching a particular age, there are no such limits on being a prime minister. This question is not even raised in party or public discourse, probably because it affects the dignity of political democracy.

But let me confine the present discussion to the superannuation of Justices. I have always argued in favour of a constitutional amendment that requires the same age of retirement for High Court Justices and Supreme Court Justices (at present the former retire at 62 years, whereas the latter at 65 years). If this is not a “palpable” (in Chief Justice Yashwant Chandrachud’s words) or “manifest” (in the words of Rohinton Nariman J.) arbitrariness which can be easily rectified by a constitutional amendment, I do not know what is arbitrary! I have, for about 20 years, written and campaigned for an amendment that fixes the superannuation of all Justices at 70 years, which would redress the visages of ageism from our justice system altogether. The time for championing these structural reforms is now.

Justice (Dr) Chandrachud, having ringside experience in judicial administration, knows the responsibilities entailed, in what I call OAL (organisational adjudicative leadership) and HAL (hermeneutical adjudicative leadership). The CJI bears perhaps disproportionate responsibility in matters of OAL. But it is a just expectation that he would give certain matters a high priority.

One such matter is the high confidentiality of in-house management. Should this extend to matters such as allegations of sexual harassment where an in-house committee is set up whose report is conveyed to the CJI? Already, Justice Indira Banerjee (who was with Justice Indu Malhotra in a committee of three) has publicly suggested that the report exonerating an indicted Justice should be made public. Given his well-bred views on gender justice, would one be far too wrong in expecting that the incoming CJI will make the in-house procedures more transparent?

The same may be said about a considerable number of matters received by the apex court in sealed envelopes; the deployment of sealed envelope jurisprudence is spread across defense procurement inter-state contracts, allegations of judicial corruption and even the cricket control board! Such jurisprudence leads to opacity in the administration of justice and must be constitutionally unfriendly to rule of law. How may it be extended to matters such as threats to the independence of the judiciary (such as Justice AK Patnaik investigations concerning conspiracy to discredit Chief Justice of India Ranjan Gogoi)? Is there any justification to regard the matter as a secret?

Further, though even the so-called “judicial revolt” of 2017 (by incumbent senior Justices of the Supreme Court) accepted the sole prerogative of the chief justice to constitute benches, the question of the institutional integrity of rights structures remains a matter of public importance. Should sensitive constitutional matters be assigned to a two-judge bench where the opinions of learned individual Justices could honestly differ?

This happened on October 13, 2022, when the two Justices on a bench differed in the hijab case, referring the entire matter to the CJI for a larger bench. Is the CJI in convening smaller benches not expected to anticipate creative judicial disagreement on some matters? May the CJI render altogether into a dead letter the mandate of Article 145 (3) requiring a bench of five justices “for the purpose of deciding any case involving a substantial question of law as to the interpretation of this constitution” (or a reference under Article 143)?

The exercise of the Master of Rolls prerogative also concerns the scheduling of matters for hearing and disposal. The question as to what sort of discretion the CJI possesses is an affront to the very prerogative. In the nature of things, this prerogative is near absolute. Certainly, lawyers may mention, as they often do, that a particular matter be expedited, but they may not dictate the actual schedule of hearing.

The question assumes visages of urgency because the constitutionality of a number of legislations and executive acts have been impugned and a large number of matters have yet to be heard. These include the decision to demonetise, election bonds, amendments to the citizenship law, revocation of statehood to Jammu and Kashmir, validity of security legislations and many a review petition. Nor do I know how any CJI may come to fully know about many other long pending cases. Further, the idea of any queuing theory has not been studied by courts in India. Perhaps, it is considered infra dig!

HAL is a co-equal aspect. No one studying the Supreme Court of India in the past six years will fail to acknowledge the presence and participation of Justice Chandrachud, whether expressing the opinion of the Court, concurring, dissenting, or overruling. He has made an indelible impression as a widely read academic scholar, at home with Indian and global jurisprudence. He is much hailed as a part of Constitution benches which decriminalised consensual homosexuality, recognised privacy as a fundamental right under Article 21 and decriminalised adultery; and was part of the majority holding which upheld the right of women of all ages to enter Sabarimala Temple. And notably, in relation to environmental law and jurisprudence, he has spoken for the Court of the need to develop a capacious notion of “environmental rule of law”, a notion apt for controlling and combating anthropogenic harm.

Justice Chandrachud was also a member of the five-judge bench which decided the Ayodhya-Babri Masjid case, a case that won great applause for declaring that the Places of Religious Worship Act was an aspect of the basic structure and essential features of the Constitution. That holding did not prevent him from ruling in the Gyanvapi Case that a relief asking for a right to pray was not forbidden by that law; only the change of the nature of the place of worship was frozen as of 1950 (save the then ongoing Ayodhya dispute).

One would expect considerable continuity and development by Justice Chandrachud’s progressive and purposeful leadership in regarding women and trans people’s rights as human rights. The recent momentous decision holding that marital status must not affect anyone’s right to seek an abortion remains a beacon light1. Pivotal also is the inclusion of persons who are not cisgender women. The judgment also declares non-consensual intercourse between married couples as marital rape, which may further reinforce the struggle to declare marital rape as a punishable offence.

His Lordship is well known for breaking the “glass ceiling”; in a landmark verdict (February 2020), he ruled for the Court in favour of women officers in the Army getting permanent commission and command postings, rejecting the argument stressing their physiological limitations as being based on “sex stereotypes” and “gender discrimination against women”. Later, he led a bench which paved the way for granting permanent commission to women officers in the Indian Navy, insisting on a level playing field that ensures women have the opportunity to overcome “histories of discrimination”. He will be long remembered for introducing intersectionality to Indian jurisprudence2.
And writ large across his many opinions is his insistence on life and liberty and rights, which have saved many a targeted individual from excesses and abuse of executive powers. In all these progressive realms of law, Justice Chandrachud has for himself, and for the Court, made the notion of constitutional morality a sword and shield for equality, rights, development and justice for all.

It will be out of bounds for me to say how Justice Chandrachud may further develop HAL, but I can say unerringly that his ever so subtle, swift and supple, but gently firm adjudicative leadership, will remain a great demosprudential asset for a long time to come.

The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer

1 At a time when the SCOTUS is busy dismantling abortion rights and other rights to justice by minorities: see Upendra Baxi, “More than A Requiem for Reportative Freedom”, India Legal, 26 July, 2022. Especially, given the aggressive stigma and lack of adequate healthcare facilities, it remains an open
question how far this right will reach in practice: see, Deepa Parent, “Indian Women Cautious About the ‘Historic’
Abortion Ruling”, Open Democracy 12 October, 2022.

2 Patan Jamal Vali vs The State of Andhra Pradesh, MANU/SC/0323/ 2021. But see, Sanjay Jain, “Addressing Disability-Based Discrimination and Violence Through
Intersectionality” (forthcoming, 2023); Rahul Bajaj, “Twenty Years on, Inclusion Remains a Distant Dream for India’s
Disabled” (OxHRH Blog, 29 October, 2015)

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