I will start with a disclaimer, that this article is not a legal analysis of Chandrachud’s judgments or a critical evaluation of the correctness of his judgments, rather it’s a subjective critic of his progressive credentials, and more importantly why we collectively should move away from expecting the Supreme Court or it’s judge’s to be the ‘white knight’ to save us from the dark forces of authoritarianism or backsliding of democratic rights.
Let me also make myself clear that, when I mention the word ‘progressive judge’, the word is defined as whether a particular judge he/she /they discharge the constitutional duty of ‘sentinel qui vive’ (watchful guardian) in protecting the rights of the citizens. In simple language, when the government becomes abusive or oppressive to a citizen, did the court/judge promptly act to defend the constitutional rights of the aggrieved person.
I will start with a myth that has been conditioned and groomed to every law student in India. When you become a lawyer, there are only three things needed to bring social justice in India: (i) lawyers robe, (ii) extensive knowledge of constitutional law, and (iii) a progressive and defiant judge. When you have these three conditions, you can bring radical changes without the messiness of protest or public movements. I was one among them, when I was a law student in Jamia Millia Islamia, the valor stories of Justice Bhagwati, Justice Krishna Iyer and Justice Hans Raj Khanna, who had single handedly expanded the scope of constitutional rights in India were repeatedly told. Make no mistake, they are great judges, who have contributed immensely to the growth of rights jurisprudence in India. But do those exceptional judges justify the myth of a ‘progressive judge’, where we are told that they can alone bring radical changes in social justice commitment in India.
I started law school at the time, when the threat of democracy from the current administration started emanating. The JNU protest, and the debate around ‘nationalism’, and Supreme Court order mandating people to stand up for the national anthem at movie theatres were among the raging issues. I was one of the students that looked upon Justice Chandrachud as a savior, or a defiant judge, who will take up a strong position in defense of rights at the time of crisis. My early belief was not unfounded, he indeed had been part of a series of judgments, coupled with his progressive lectures which made me genuinely believe, that Justice Chandrachud will be the last bastion, who will defend democratic rights in India; and he will go down in the history as a reverend constitutional judge like Justice Warren in the U.S Supreme Court, who decided the racial segregation in U.S as unconstitutional.
Progressive era of Justice Chandrachud
One of the earliest memories of Justice Chandrachud’s progressive involvement, was when he openly disagreed with the Supreme Court’s earlier decision that mandated the people to stand up for the national anthem in the movie theatres. While sitting on the bench beside Justice Deepak Mishra, who pronounced the earlier decision, Chandrachud openly asked “Should patriotism be worn on our sleeves?”. This powerful rebuke in favor of defending the right to dissent against State imposed nationalism on the citizens of the country, were one of the earlier examples.
Justice Chandrachud’s statement came as a warm relief at the times, when political class were struggling to resist this form of aggressive nationalism. His progressive credential continues to shine in his Puttuswami judgment, where he not only recognized the constitutional right to privacy, but he had overruled his father Justice YV Chandrachud decision that upheld presidential order to impose emergency during the Indira Gandhi government.
Justice Chandrachud went on the marathon of progressive judgments from decriminalizing same-sex relationships to protecting Delhi Government’s constitutional federal character from the Union Government’s overreach and striking down the law that prevented women from entering the Sabarimala temple. I was one among the law students who genuinely rejoiced about Justice Chandrachud’s judgments, to the extent of blind admiration. In other words, I was unfortunately a ‘fan’ of a judge, where I believed that he was the solution to protecting Indian democracy from fascism and authoritarianism.
This fandom only peaked, when Justice Chandrachud delivered his dissent in the constitutional validity of Aadhar. His dissenting opinion clearly marked the dangers of Aadhar enabling surveillance and its threat to the right to privacy. More importantly, Aadhar’s exclusion of marginalized groups, especially Adivasi and poor people from welfare policies, only affirmed his insightful warning about the impact of Aadhar card on the right of equality of the citizens.
After the judgment, my hope squarely pinned on Justice Chandrachud, and I shared my thoughts with one of my professor and mentor, arguing that his tenure could be a golden period for constitutional law, where as a lawyer with advanced constitutional knowledge could successfully challenge some of the worst laws and policies of the present government. My professor smilingly reminded me that, you should not pin high hopes on any supreme court judge or the institution; that Indian Supreme Court and its Judges are not infallible, but they have their own fair share of historical blunders. But then, I vigorously argued that Justice Chandrachud’s tenure will be an exception.
Breaking of the myth
I graduated in May 2019 and started working in the Supreme Court of India. This was a tumultuous period, where my faith in the Supreme Court started to fade away, as I witnessed how the Supreme Court intentionally engaged in refusing, delaying and denying any relief in habeas corpus petitions in the aftermath of Article 370. But, I kept gaslighting myself that maybe, if Justice Chandrachud had been the Chief Justice, this kind of travesty of justice would have never happened.
However, all this hope and admiration for the myth of a ‘progressive judge’ broke down on November 9, 2019. On this auspicious day, the Supreme Court of India finally ordered that the Babri Masjid title should be given to temple authorities. When I went to the Supreme Court to witness the judgment in the morning, I didn’t have much hope that the Court would deliver the judgment in any way other than how the judgment came out. However, what I was truly hoping for was a dissenting opinion from Justice Chandrachud. My mind was racing with the thought, does he have the courage to pronounce a dissent, despite the intense political pressure and environment?
Then to my surprise the Judges started reading the judgment, and informed me that it was a unanimous judgment without any dissent. Many lawyers ran towards the Supreme Court lawn, and started celebrating the decision. Walking outside, I felt hopeless witnessing the creeping dominance of majoritarianism over the Indian Supreme Court, but what hurt me most was the absence of any dissenting opinion, especially Justice Chandrachud’s dissenting opinion.
The problem of the myth is that once the spell is broken, the myth holds no power over the person. I worked for another year in the Supreme Court, and witnessed judicial proceedings of challenging Citizenship Amendment Act, State violence in Jamia Millia Islamia, illegal detentions and extrajudicial killings of protestors against CAA and Delhi pogrom 2020. On each occasion, the myth of progressive courts and judges being the last guardrail against the deprivation of democratic rights only became a distant dream. One of the last days, I remember a student came out of Chandrachud’s court and started sharing his thoughts on how intellectually stimulating it is to attend his judicial proceedings, and his hope for him, when he becomes Chief Justice. I smiled at him with a thought, who will tell this poor lad that the idea of a progressive judge is a myth?
However, I was seriously disappointed, when his bench delivered a decision on Section 3 of The Places of Worship Act of 1991, stating that the section does not expressly bar or ascertain the religious character of the place of worship in the background of Gyanvapi Mosque. Justice Chandrachud is anything but a mediocre judge, he understands how the Babri Masjid dispute altered the lives of Muslim minorities living in India, he is acutely aware allowing the archeological survey of the Gyanvapi Mosque would open a new chapter of alteration of religious structures of Muslim minorities in India, and thereby majoritarian violence on minority communities, but he ignored everything. Now, when I write this, at least five Muslim youth were shot dead by UP police after a survey team showed up in Shahi Jama Masjid in Kot West. A judge who literally looks up to the God for judgments, cannot wash away his sin for deliberately enabling this project of altering religious structures and responsible for opening a new door for majoritarian violence.
Justice Chandrachud- 50th Chief Justice of India
Justice Chandrachud took oath as the 50th Chief Justice of India on November 9, 2022; and he had a tenure of two years in the position, which is quite extensive compared to his contemporary peers. For instance, his predecessor Justice U.U Lalit only had 74 days as a tenure of Chief Justice. In my mind, I was racing with the thought that, maybe since now he has become Chief Justice and ‘master of the rooster’, he might be able to discharge his constitutional duty of ‘being a sentinel qui vive’ (watchful guardian) in protecting the rights of the citizen. He was heading the Supreme Court, at a time, where there was an unprecedented attempt by the government to not only restrict rights, but redefine the constitutional rights that would impact generations to come. The abrogation of Article 370, constitutional validity of CAA, electoral bond, right to same-sex marriage, and bail plea of Umar Khalid, were all under the consideration of the Supreme Court of India.
He had a difficult choice, either disrupt the status quo of Supreme Court being an executive court, and turn a new page in the constitutional history, but by which he will inevitably invite the wrath of a powerful authoritarian government; or continue with status quo and go down in the history as an obituary writer for the institutional death of Supreme Court, and unfortunately, Justice Chandrachud decided to go for the latter.
In a country that has recognized the right to interfaith and inter-caste marriage as a constitutional right, the denial of Supreme Court judges to even admit that same-sex couples also have a similar right to marriage, is the first blow to people’s expectation from Justice Chandrachud’s tenure. Justice Chandrachud’s decision only acknowledged the queer people’s right to civil union, but didn’t even admit the constitutional right of marriage of same-sex couples. I often wonder, what does ‘civil union’ even mean from a legal standpoint in an Indian context in comparison with legal rights of married heterosexual couples? But what hysterically puzzled me more was that, one week later, Justice Chandrachud infamously gave a lecture and stated, “Remedying historical wrongs ought to be the goal of any constitutional system”. I rolled my eyes and wondered if ever there was a constitutional church, Justice Chandrachud should be appointed as a priest in the Church, because he is better at preaching than giving a real constitutional judgment to protect the marginalized communities.
But for me, the most worrisome of his tainted legacy is his constitutional decision in ‘abrogation of Article 370’. There are many criticisms of the judgment, but one of the consequential and controversial aspects of the judgment was enabling a powerful Union government to make irreversible changes to the Statehood and converting it into a Union territory during the President’s rule. At a time when a powerful and authoritarian government is vesting their power in the Center, a carte blanche for the Union Government to change States to Union territory during the pendency of Article 356 (President Rule), will be the first death knell of Indian federalism. If tomorrow, the Union Government breaks Kerala or Tamil Nadu, and converts them to Union Territory, since both states don’t typically vote for the BJP (ruling party); you know who to blame!
In the list of disappointments, I won’t forget his court’s refusal to list important matters such as the constitutional validity of Citizenship Amendment Act and bail plea of Umar Khalid. The bail petition was adjourned 14 times and deliberately delayed for more than 10 months, before Khalid had to withdraw the petition. Maybe in Chandrachud’s Court, Arnab Goswami and other right-wing journalists are the only ones eligible for protection of free speech and the right to dissent. The rest of all are doomed to stay in prison without due process and fair trial.
The only exception to this pattern of overly making government comfortable was the decision in the electoral bond. That may be the only surprising element that I had in Justice Chandrachud’s tenure. But this exception is not big enough for the Supreme Court’s silence when the Prime Minister of India, went on spewing hate against Muslim minority in India, while campaigning for his 2024 election.
On a day looking at the grim reports of UP police shootings of five Muslim protestors, the only legacy that Justice Chandrachud left is that you can’t trust a progressive judge to bring radical protection and expansion of constitutional rights for marginalized communities and individuals. It’s people’s movement and conversations on human rights which is the way forward; and four walls of the Supreme Court chambers is only ‘one’ of the instruments for expanding constitutional rights, not the “only” instrument.
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