The soul of justice cannot be enclosed in world-class brick and mortar structures just as the cause of liberty is not served by sermons in structured judgements. The constitutional protection to the right of privacy is not ensured by declaring it as a fundamental right but by holding ‘unconstitutional’ intrusive acts of the state through its enforcement agents. Upholding constitutional values is in the nature of a sacrament; any willful infraction or apparent insouciance in protecting those values makes the justice delivery system suspect in the eyes of the public.
Over a billion people in our country are watching how our courts attempt to balance the interests of the state with the interests of those seeking justice. For a polity as divisive as one prevailing since 2014, the constant vigil of the court is the only way to ensure our constitutional values are safe.
Chief Justice D Y Chandrachud’s tenure was high on optics and somewhat low on delivery. The court under his stewardship often compromised even on liberty, of which he was ostensibly a champion. His majoritarian tilt, reflected in some of his judgements, was worrisome. At the heart of the justice delivery system is the ability of the court to stand up to the excesses of the executive; to speak truth to power. The court’s record in that endeavour has been rather weak.
Despite this, Chief Justice Chandrachud, who became a judge of the Supreme Court on May 13, 2016, has many landmarks to his credit. The frenetic energy he demonstrated over the years, especially during his tenure as the CJI since November 2022, in creating inclusive infrastructural facilities for the court and lawyers has won him accolades. Sensing the inadequacy of the existing infrastructure, he single-handedly facilitated the proposed construction of a new building within the Supreme Court premises, which will have world-class facilities both in terms of court rooms as well as space for practising lawyers and litigants seeking justice.
He endeared himself to members of the Bar, in particular the younger members, by his exemplary conduct in court and the patience he demonstrated when hearing matters. His initiatives were transformational in many respects. For example, moving away from physical filing to digital record-keeping has transformed access to justice, live-streaming of court proceedings in constitutional matters has brought it closer to people, and simultaneous translation of court proceedings has allowed for accuracy and contemporaneous recording, which facilitates lawyers to make their submissions with greater clarity.
The cafeteria facilities for lawyers, modernisation of facilities for the Bar, conceptualising a new building for resolution of disputes through arbitration are certainly initiatives for which he will be fondly remembered.
The chief justice wondered about his own legacy. But what he should have wondered more about is the legacy of the court he left behind. In this context, the court under his leadership fell short of expectations.
Part of the problem is the diktat of the Master of the Roster in assigning cases that concern our fundamental freedoms, the future not only of the polity but of the nation as well. Each one of us at the Bar is aware of the likely outcome of a case when assigned to a particular judge. Eyebrows were raised when certain cases dealing with fundamental freedoms were assigned to particular benches. That is one area where, I believe, the court requires to evolve a procedure that does not evoke suspicion or controversy.
While the then chief justice must be given credit for deciding long-pending constitutional matters, one felt that matters of political significance requiring urgent attention were not listed. The Shiv Sena matter was pending for over a year, giving legitimacy to a government that was constitutionally suspect. Eknath Shinde, Ajit Pawar and their lot should, I believe, have been disqualified long ago. The future of our democracy depends on the quick disposal of such matters. Had those matters been heard, the outcome of Saturday’s election results in Maharashtra would have been entirely different.
Despite the fact that the PMLA judgement was under review, the matter has been kept pending for years. The Enforcement Directorate has been merrily misusing its powers by continuing to destabilise many opposition-ruled state governments. Had the law been settled in time, the future of the polity of our nation might well have been different.
Amendments to existing laws were carried out by including them in the Finance Bill, thereby terming them as ‘money bills’. That matter too has not been heard for years. Not deciding matters relating to the polity of our country indirectly benefited the government in power. That indeed is a matter of great concern. We have also seen, on many past occasions, that matters relating to defection were not heard for years till the term of the assembly was over.
Oppressive statutory provisions relating to bail being upheld by court required to be revisited. That too did not happen. Rampant bulldozer justice, including open threats to the minorities, did not evoke a suo motu proceeding, nor did the open threat of violence by those at the forefront of the dharma sansads.
The court, I believe, is an institution that can set right the course if events in the polity go astray. The real challenge India faces relates to the slow but steady diminishing of our syncretic culture. That’s what needs protection. The onslaught of majoritarianism, induction of those committed to an ideology into the judicial system, destroys the very fabric of our country. The judge needs to be independent of a political ideology when administering justice.
The induction of such judges and transfer of judges who attempted to stand up to the executive at the same time does not bode well for our judiciary. The CJI who allowed this to happen must take the blame. He was the author of a judgement that held that no further intrusion into religious places of worship was to be allowed. However, disregarding his own judgement, he allowed intrusion in the Gyanvapi case.
When it mattered, he fell short. There is no point in creating physical spaces and amenities without upholding the very essence of justice, which is its soul.
(Views are personal)
(Tweets @KapilSibal)
Kapil Sibal | Senior lawyer and member of Rajya Sabha