Legal Eagle: Chandrachud’s tenure will be action-packed

There have been innumerable cases where deserving judges have been overlooked and mediocre judges elevated to the Supreme Court because of their rapport with the consultee judges

Olav AlbuquerqueUpdated: Friday, October 21, 2022, 01:14 AM IST
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Justice DY Chandrachud | PTI

Just 17 days remain for the 50th Chief Justice of India (CJI), Dhananjaya Yeshwant Chandrachud, to be sworn in, as the notification appointing him the CJI has already been published by the law ministry. With the swearing in of CJI Chandrachud, the premier Bombay High Court continues its tradition of contributing the maximum number of CJIs to the Supreme Court.

Justice Chandrachud’s urbane, suave and boyish looks hide a razor-sharp intellect. He was a consultee judge for putative appointees from the Bombay High Court to the Supreme Court, and also for lawyers being considered for elevation as judges of the Bombay High Court. It was Justice Chandrachud with Justice AM Khanwilkar who opposed the confirmation of Justice Pushpa Ganediwalla as a Bombay high court judge. Their senior, the former CJI Sharad Arvind Bobde from Nagpur who, like Chandrachud, comes from a family of jurists, ignored these judges’ misgivings about confirming Justice Ganediwalla but had to recall his confirmation letter after she acquitted those charged with molesting minors with her infamous ‘skin-to-skin contact’ remarks, resulting in a scandal. Justices Khanwilkar and Chandrachud were only discharging their duties when they opposed her confirmation, just as they concurred in the elevation to the Supreme Court of Justice Bhushan Ramkrishna Gavai who is set to become the 52nd CJI after Justice Sanjiv Khanna demits office in 2025.

Laypersons do not realise that when a two-judge Bench or a three-judge Bench assembles, the juniormost judge is kept with the chief justice or the seniormost judge who will, sooner or later, be asked to evaluate the junior judge’s orders and acumen so that he will be made a puisne (permanent) judge or retained as an additional judge before quitting the judiciary. After elevation to the Supreme Court, former chief justice Dipankar Datta will be asked to opine if certain senior judges of the Calcutta and Bombay High Courts are fit for elevation to the Supreme Court.

This evaluation is said to be an unfair practice because unless all the judgments and orders of a particular judge are compiled, consultee judges have only hazy perceptions of their brother judges who sat with them on a two-judge Bench. Of course, if they give these junior judges the task of writing judgments, their evaluation will be more objective. But there have been innumerable cases where deserving judges have been overlooked and mediocre judges elevated to the Supreme Court because of their rapport with the consultee judges.

More sinister is the allegation made by former Justice Jasti Chelameshwar, that a few judges of the collegium circulated lists of those whom they wanted elevated on a tacit quid pro quo basis. Justice Chelameshwar boycotted those old collegium meetings because of their opacity. He would have been a CJI were it not for a mischance of him being sworn in a few minutes after Justice Dipak Misra.

Justice Chandrachud has been a witness to the dramatic press conference held by the three seniormost judges in January 2018, and other dramatic episodes in the Supreme Court. A hard-core diplomat, he kept a low profile. Unlike the former CJI Dipak Misra, CJI Chandrachud will never be accused of manipulating benches as a master of the roster to ensure that sensitive cases of the government will be allotted to judges who will deliver what the government wants them to deliver.

However, it remains to be seen if he streamlines the master-of-the-roster system to ensure that such alleged manipulations never take place in future. In any case, he will be assisted by Justice KM Joseph whose elevation to the Supreme Court was delayed by the government because they did not like him. Both Justices Chandrachud and Joseph did not allow CJI Uday Umesh Lalit to nominate judges to the Supreme Court by way of circulating a memorandum rather than have a face-to-face discussion, less than one month before he demitted office. The reason was that Justice Chandrachud was busy with judicial work till 9 pm on the day the Collegium headed by CJI Lalit was supposed to meet. But there may be more to this.

After all, it is well known that Justice Lalit’s father had his confirmation as a High Court judge from Nagpur blocked by Indira Gandhi because of the latter’s perceived closeness to the RSS and the fact that he granted bail to two persons accused of raping a minor. But ideologies change with changing governments which change the norms for elevating judges. Former CJI Ranjan Gogoi admitted that the government does have the final say in who will be elevated to the Supreme Court and the High Courts.

It was because Justice Jasti Chelameshwar was adamant on iterating Justice Joseph’s name a second time that the government had no option but to elevate him to the Supreme Court by first delaying his seniority. But a stalwart like Justice Akil Kureshi was not so lucky. Like Justice Joseph, the government had a “negative perception” of his judicial orders which was why Justice Gogoi chose to succumb to the government diktat rather than fight for a judge who is known to be upright.

The CJI with the shortest tenure of 17 days in 1991, Kamal Narain Singh, died last month aged 95 years. The next CJI, Justice Chandrachud, will decide who will succeed him as the CJI in decades yet to come, who in turn will decide who will succeed them in office. This is why we need rebel judges like Jasti Chelameshwar who do not look forward to post-retirement sinecures from the government but are ready to deliver justice for the common man.

Justice is not an empty prefix before the names of those who deliver it but an embodiment of the divine.

Olav Albuquerque holds a PhD in law and is a senior journalist and advocate at the Bombay High Court

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