This is an unedited version of the Article that was published in Swarajya on December 14, 2023.
The historic Judgement of the Supreme Court on the abrogation of Article 370 is out, and the court has without surprise (in the author’s opinion at least) up held the negation of the special status of the erstwhile state and upheld the creation of the Union Territory (UT) of Ladakh. The Judgement is almost a complete victory for the arguments that the Government of India advanced in Court, barring a timeline for the election and a technical point relating to the issuance of Constitutional Order 272. In terms of realpolitik, there was no real way the Republic could have implemented a judgement striking down the actions of August 5 and 6, 2019. Once it was done, it was done. The world sans Pakistan in fact, has moved on from the issue.
What is more amusing is that the public narrative on Chief Justice of India (CJI) D.Y. Chandrachud seems to have significantly shifted in social media. To the casual observer, the pronouncements and public posturing of the CJI seems to be at the odds with his actions as a Justice of the Court. After all, the CJI has made multiple observations in public and in the courtroom that have left no doubt about his ideological predisposition.
Lest we forget, the CJI as a Justice wrote the momentous Sabarimala Judgement that inflamed the state of Kerala for six months in 2018. He also wrote the majority judgement in the nine-bench decision (K.S. Puttaswamy v. Union of India (I)) that in eloquent terms held that there existed a Right to Privacy; and in the following Aadhar Judgment wrote a passionate dissent that was celebrated by the legal intelligentsia. In the famous case of Hadiya (Athira) who was allegedly coerced to convert to Islam, Justice Chandrachud upheld the individual right of privacy and negated the concerns expressed by her father and other investigating agencies. There are many other examples; the dissent in Romila Thapar v. Union of India regarding the arrest of Bhima Koregaon ‘activists’, the same-sex decriminalisation judgement, the adultery decriminalisation judgement, and so on and so forth.
It would be remiss to not mention that the current CJI is also most likely the author of the decision in the Ram Janmabhoomi case. A full picture of the CJI thus, as a hypocrite may be advanced or even believed by some. Those who believe in the notion of an “Executive court”- that the Supreme Court is fundamentally broken and subservient to the political executive, would also probably never have been ‘taken in’ by the CJI’s words and some of his judgments. For them, the judgement in the Loya case itself is enough to write off the CJI. Much like how Justice Kaul has gone down in the view of ‘liberals’ for the Article 370 Judgement. The litany of public statements of the CJI and his own observations in many judgements as illustrated above, stand in contrast to this.
As CJI, his pronouncements have emphasised a similar ideological lens; whether it be his public riposte to the Vice President or then Law Minister Kiren Rijiju. In many ways, he has zealously defended the Court from criticism and scrutiny from the political executive.
All of this lay in contrast to a long line of judgements that have been in favour of the ruling party and the supposed ideological opposite of the CJI. This is a long line stretching from the Article 370 Judgement to the Judge Loya judgement. The same sex marriage decision would be the most grievous wound for the ‘liberals’, but one cannot discount the negative feelings many expressed following the principled stand then then-Justice took in the Arnab Goswami arrest decision. The decision to uphold the constitutionality of Article 370 is arguably the final nail in the coffin for liberal wet-dreams about CJI’s predisposition to hold the Central Government to ‘account’. Rumours had abounded about the term of the current CJI’s predecessor, CJI U.U. Lalit. It was rumoured that the Constitution would be amended to increase the term of the then Chief Justice. They came to nought; but there was genuine concern among those who support the Government and celebration among the ‘liberals’ about the two-year term of the current CJI.
A popular view of him now however can be summed up in the following tweet:
A good disclaimer to this entire exercise would be that those who support the Modi Government constantly and consistently underappreciated, or even is completely oblivious to the capacity of the SG and ASGs; and that the “liberal” projection of the Judiciary as an “effective” opposition to the Modi Government was misguided to say the least. The rule of the judiciary that CJI Chandrachud has is essentially conventional to the establishment. He might speak out on majoritarianism and more, but that is essentially his view of the constitutional paradigm and does not necessarily reflect his political opinion in holding the Modi Government “to account''. Certain vested interests might wish for him to do so, but that does not reflect in reality.
Because the CJI due to his suave engagement of the media and his “screen presence” is the most publicly prominent head of the Supreme Court, the amount of projection from the members of the public is more than ever before. One reason for the hypocrisy of the CJI is that both sides have ‘pigeonholed’ him to the views they believe he has.
A full evaluation of the current Chief Justice of India is too premature - since there is a good 11 months to go before, he retires; and there are many more substantive questions of law that are yet to be decided, and controversy already brewing over the assignment of some “politically sensitive” cases.