A Politician in the Courtroom: Remembrance of the DYC Years

Oh, pale shadow of a man 

Tryin’ a impress the best he can 

Boy don’t you understand 

All you need has always been 

In your hand

- Samsara Joyride, Shadow of a Man (2022) 

Chief Justice Chandrachud II . This was not only on account of the multiple constitution and regular bench pronouncements which went on till his final day but also due to his extra-court occupations. 

“Deals are never cut like this”, he exclaimed at the minutely scrutinised Indian Express event last week. Having paused momentarily for the crowd’s reaction, he then hastened to state even more emphatically, “Please, trust us, we are not there to cut deals.”

The Chief Justice was, of course, proffering a belated explanation, guised as reassurance for his now well-known Ganesh Puja meeting with the Prime Minister.

One could not help but feel sorry for Dr Chandrachud at this moment; he was, after all, the liberal prince who was promised at the time of his swearing-in as the Chief Justice. At that event, however, he was all but a pale shadow of this erstwhile promise, trying to climb up from a ditch he had so unnecessarily dug for himself, and in the process, for the institution of the Supreme Court. 

My first couple of years at the Supreme Court coincided with the DYC years. I was not new to practice and yet, Court No 1 of the Supreme Court inspired a sense of reverential fear. The room is an archetype of an : its high ceiling, old suspended fans and tall walls are designed to intimidate.

Ask anyone who practices regularly at the Supreme Court, and they’d tell you that Justice Chandrachud’s presence in Court No 1 had a calming effect: he was patient with the unclear, unfazed with the arrogant and most importantly, welcoming with the novice. My favourite activity during my first few months was to sit in the first few rows and simply observe him running his court with a composure unknown to Indian courtrooms.

This was an interesting time to be at the Supreme Court, both as a participant and as an observer. The Chief was listing and deciding sensitive cases that had hitherto gathered dust; on the administrative side, major changes were underway in a bid to make the affairs of the Court more accessible and transparent.

What dawned upon me early on - and which only got vindicated by the end of his tenure - was that the Chief was unwilling to take the Centre head-on. In fact, with the exception of a few cherry-picked cases with no long-term ramifications, the Chief refused to enter into any kind of confrontation with the Centre. This was not only apparent in matters of appointment, but also on the judicial side.

Take, for example, the case of the indefinite suspension of MP Raghav Chadha from the Rajya Sabha in August 2023 (disclaimer: this author was one of the counsel in the case). With the case listed before his bench, Justice Chandrachud had an opportunity to send out a message that actions which aim to silence dissident voices in the Parliament shall be reviewed and set aside.

Instead, the Court offered a ‘settlement’: Mr Chadha made an unconditional apology, and his suspension was ultimately revoked without a judicial decision in that matter. Later that year, a total of 141 opposition MPs stood suspended in the winter session of the Parliament, even as it ‘debated’ bills which sought to replace the criminal law investigation and adjudication regime in India. The Supreme Court had missed a very vital opportunity to keep this brazen unlawfulness in check.

Speaking at a lecture series recently, Dr Chandrachud emphasised the intersection between the work of the judiciary and government on the administrative front, stating that in matters of appointment, a continuous dialogue between the judiciary and the government helps a ‘consensus’ to emerge. While seemingly innocuous, this statement provides a significant insight into Dr Chandrachud’s judicial philosophy.

The collegium system does not envisage a ‘consensus’ between the judiciary and the executive in matters of appointment: at best, it allows the government to express non-binding reservations against a person’s candidature. But here was the Chief Justice of India, stressing on the importance of a collaborative process of appointment and the merits of executive-judiciary ‘cooperation’. The collegium system, in effect, had been transmuted into a collaborative process without a decision on the judicial side.

But Dr Chandrachud’s congenial disposition towards the Centre was not restricted to matters of appointment: it manifested, most evidently, in his refusal to arrest attacks on two of the most elementary institutions of the Indian polity: secularism and federalism. Perhaps the most damning example of this is the legal gymnastics he undertook to enable the opening of the Gyanvapi Pandora’s box.

The Places of Worship Act, 1991 prohibits the alteration of the character of religious places of worship. For this purpose, the nature of a religious place as of 15 August 1947 is considered to be the final character. In October 2023, while hearing a matter related to a suit for a right to worship at Varanasi’s Gyanvapi mosque, Justice Chandrachud refused to dismiss the suit for being in the teeth of the 1991 legislation. Per Justice Chandrachud, the Hindu litigants did not seek a conversion, but only an inquiry into the status of the place as of 15 August 1947. "What is frivolous to you is faith to the other side", he famously remarked during one of the Gyanvapi hearings.

At the time of this hearing, the country was gearing up for the incoming general elections. Dr Chandrachud’s stamp of authority on the Gyanvapi wild goose chase provided a new lease of life to the ruling party’s politics of vitriol, which perhaps needed a new bone of contention after the Ayodhya issue was laid to rest. Needless to mention, it provided a gateway to other such petitions calling for re-examination of the original ‘character’ of mosques all across the country. There was only one political party benefiting from these roving enquiries.

In May 2023, a constitution bench led by Justice Chandrachud unanimously held that it was the elected Delhi Government - and not the Centre - which had control over the administrative services in the national capital. The logic behind the judgment was not very difficult to grasp: the bureaucracy is the administrative arm of the political executive, without which no government would be able to discharge its political mandate. Within a week of this judgment, the Centre passed an ordinance to wrest control of the services in Delhi. The ordinance subsequently became a Parliamentary law.

By July 2023, Chief Justice Chandrachud had already referred the issue of validity of this law to a constitution bench (disclaimer: this author was one of the counsel in the case). However, in the remaining 16 months of his tenure, this bench was never constituted for a hearing, even as the elected Government of Delhi witnessed a policy paralysis on account of recurrent insubordination by the bureaucracy.

Examination of the contentious law was central not only to the lives of the people in the national capital but also to the real import of the phrase ‘asymmetrical federalism’- a phrase which Dr Chandrachud had championed. However, it never figured in his scheme of things.

But Dr Chandrachud’s refusal to come to the rescue of the federal structure was not restricted to inaction alone: at least on two specific occasions, smaller benches led by Dr Chandrachud diluted his May 2023 constitution bench judgment, which sang paeans to federalism. On 29 November 2023, a three-judge bench of led by him allowed the Union Government to unilaterally extend the services of the incumbent Chief Secretary of Delhi for a period of six months (disclaimer: this author was one of the counsel in the case).

At the outset, the judgment was an act of judicial impropriety. The judgment, in effect, modified the May 2023 constitution bench judgment which laid down in unequivocal terms that references to ‘State Government’ in the relevant Rules of All India Services or Joint Cadre Services, of which Delhi is a part of or which are in relation to Delhi, shall mean the elected Government of Delhi. The three-judge bench verdict departed from this binding directive, by carving an exception for the Chief Secretary of Delhi.

The verdict was a major blow to the cause of federalism, as it completely divested the elected Government of Delhi of the power to appoint the Chief Secretary, when such Secretary is concerned with more than 100 other entries in the State List and the Concurrent List over which the elected Government has legislative competence.

In effect, the ruling party at the Centre was allowed to unilaterally choose a Chief Secretary for the Government of Delhi, which, other than causing administrative hurdles, also allowed the party at the Centre to thwart the activities of the party ruling Delhi, for reasons apparent to one and all. It is difficult to fathom that such reasons were not visible to Dr Chandrachud.  

On 5 August 2024, another bench led by Justice Chandrachud ruled that the Lieutenant Governor of Delhi could nominate aldermen to the Municipal Corporation of Delhi without consulting the Delhi Government. While undermining democratic accountability in municipal administration, the judgment also had the effect of creating competing power structures between the Lieutenant Governor, who is an unelected head, and the elected Government of Delhi. Justice Chandrachud had written a beautifully worded constitution bench judgment on federalism in May 2023; he then made it bleed by a thousand small cuts.

The most remarkable feature of Chief Justice Chandrachud’s tenure, however, was that he was never speaking in one voice: he was a polyvocal judge within a polyvocal Supreme Court. On November 2023, he dictated a detailed judgment castigating the Governor of Punjab for withholding action on bills passed by the State legislature.

Most recently, while upholding the validity of the Uttar Pradesh Board of Madarsa Education Act, 2004, he noted that the concept of positive secularism finds expression in the principle of substantive equality enshrined in the Constitution. It is hard to explain this dissonance between the inconsistent rulings of Justice Chandrachud, unless one reduces it to the simple exercise of judicial balancing. But even in this balancing act, Justice Chandrachud’s verdicts had the effect of providing lasting and long-term benefits to the ruling party at the Centre.

For the adversaries, i.e., states ruled by opposition parties, activists fighting for transparency and accountability, and political prisoners looking for liberty, there was always an interest in hanging around: on their lucky day, Justice Chandrachud may have decided to ‘balance’ in their favour.

A couplet from a famous ghazal by the Hussain brothers perhaps perfectly captures Justice Chandrachud’s tenure:

‘Aap barham hi sahi, baat toh kije mujhse 

Kuch na kehne se mohabbat ka gumaan hota hai’ 

(Speak to me, even if it is in anger 

Silence gives the false impression of love)

My mother, who is innocent of the law and legal processes, has, on multiple occasions, expressed her likeness for Justice Chandrachud. ‘He sounds like such a good man’, she exclaims from time to time, as short snippets of the many DY Chandrachud interviews emerge on her social media from time to time. Understandably, Dr Chandrachud espouses all the values of an ‘ideal’ Indian man - he is soft spoken, gentle and bears the rare ability to put his point across in the most articulate of ways.

And while being this person, Justice Chandrachud is also symptomatic of a typical Indian liberal, who while romanticising the idea of a constitutional democracy, also carries some of its deepest malaises. He regularly paid lip service to the idea of judicial independence and at the same time, firmly held a paternalistic view of the state. In limiting his own independence, Chief Justice Chandrachud limited the public’s perception of judicial independence.

Given the breadth and volume of Justice Chandrachud’s work, a true analysis of his complicated legacy would take a serious scholarly inquisition. But a comment on his judicial attitude does not require a superior spectatorial virtue. As a judge, Dr Chandrachud attempted to cultivate multiple constituencies.

In his Court, everyone was equal. The Central Government was somehow more equal than others.

(Harshit Anand is an advocate practicing at the Supreme Court of India. He tweets at @7h_anand. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)