A legacy that is best forgotten

These days, Mr D.Y. Chandrachud, Chief Justice of India, is talking of, and worrying about, the legacy he will leave behind when he retires from the job next month. And well he might.

He was elevated to this position at perhaps the most critical juncture in the nation's recent history, when every democratic and humanist principle was being crushed under an unstoppable electoral machine and a government on steroids. When his last four predecessors had let down the country and had walked away into an inglorious sunset with their sinecures and post retiral benefits.

Never before had the nation nurtured such high expectations and vested so much hope in an heir apparent to the chief justice's chair. The legacy of Mr Chandrachud will be that he, too, let the nation down.

Honesty, said Shakespeare, is the best legacy; sadly, his lordship has been less than honest — with us, and to himself. At seminars, keynote speeches, valedictory functions, convocations — even in his obiter dicta — he has always hit the right notes: stressing on individual liberty, freedom of speech, religious pluralism, constitutional safeguards, the responsibilities of the court to hold the executive accountable.

But within the sanitised confines of his courtroom, he seemed to lack the courage of his convictions, leading many to wonder whether he had any convictions at all. In the words of Alexander Pope, he was 'willing to wound but afraid to strike'. That is not the proper foundation for a judge's legacy.

The Supreme Court's records will speak for themselves in times to come. Justice Chandrachud had many opportunities to do the right thing, to restore the autonomy of institutions (appointment of election commissioners), to reign in rampaging state governments (the bulldozers of UP, Nuh and Uttarakhand), to prevent the illegal surveillance of citizens (the Pegasus 'inquiry' where the Union government dared tell him that it would not cooperate!), the restoration of statehood (in Jammu and Kashmir), to restore legitimately elected governments brought down by totally illegal means (Maharashtra), to restore faith and credibility in the electoral process (the repeated petitions to return to paper ballots or do a 100 per cent verification and matching of VVPATS), to question an unaccountable Election Commission on its dubious actions and decisions (delay in uploading voter counts, non-issue of forms 17C, mismatch in votes cast and votes counted, failure to take action under the model code of conduct against high functionaries of the government).

Perhaps the worst of all was that, under his lordship's watch, thousands of social activists, journalists. dissenters, and academics continue to languish in jails without trial or even bail. Umar Khalid's bail petitions have been adjourned, I believe, 14 times, with a succession of judges recusing themselves without any explanation.

The Koregaon accused are being released on bail in instalments, as if justice is a divisible commodity. Some of them have even died under these conditions (the 80-year-old Stan Swamy), or as a result of the inhuman treatment meted out to them while in custody, the most recent being Prof. G.N. Saibaba, a man with 90 per cent disability who was kept in jail for almost a decade without being convicted of any offence.

And the most outrageous of all these stains on the court is that, when Saibaba was acquitted by Bombay High Court, the Supreme Court took the unprecedented action of convening the very next day on a holiday, and stayed the high court order!

And which historian can ever forget the Ram janmabhoomi order, in which the faith of the majority community, not legal evidence, was made the basis of a judgment that should shame any country or its judiciary? Or the photo of the hon'ble judges celebrating the judgment with a dinner and wine at a five-star hotel, a judgment which (as per press reports at the time) none of them signed — another first in our sorry history.

Under Justice Chandrachud's watch, the Centre was allowed to defenestrate the collegium even further, with its tactics of delaying, picking and choosing, or simply sitting on recommendations: he did make some noises initially, but then adopted a strategic silence.

The same fate has met the dozens of habeas corpus petitions now interred in the registry of the court. The SEBI (Hindenberg) and Pegasus inquiries were never followed up to their logical conclusion, and the can of worms opened up with the electoral bonds judgment was hastily shut again, an enforced closure of what had begun to look very much like a sovereign extortion racket.

For all his high oratory about the majesty of the court and accountability of the executive, not a single government functionary has actually been punished, to the best of my knowledge, not even the returning officer of the Chandigarh mayoral election, who was caught red-handed in an electoral flagrante delicto in an official video.

Not the encounter specialists, the bulldozer bureaucrats, or the regulatory agencies, even when the court held the arrests to be illegal both procedurally and on merit. It is true that Mr Chandrachud himself was not directly responsible for all these commissions and omissions, dictated by other benches, but as the chief justice of the court, he has to share the blame. He is, after all, the head of the institution, its chief administrator, the primus inter pares, and most important, the master of the roster. If you take credit for the thunder, you must take the blame for the drought.

He watched in silence the creeping politicisation of some of the high courts, their judges openly expressing allegiance to religions, the religious biases in their judgments, judges joining political parties and even standing for elections immediately after retiring, retired judges attending religious conclaves. The issue here is not about the legality of these predilections, but about the spirit of the constitutional values they are supposed to uphold.

As Justice Chandrachud himself was wont to remind us often, the spirit of a law is just as important as its letter. And therefore, it was important for him to have spoken out loud and clear, to remind his brother judges of the inappropriateness of their behaviour, of the judiciary's own Restatement of Values of Judicial Life, which the Supreme Court had issued in 1997.

The chief justice of India occupies a position on the country's moral pedestal much higher than his position on the warrant of precedence — his every word carries weight and has the capacity to influence the nation's discourse.

Given his fondness for preaching from the pulpit, it was incumbent upon him to have reiterated the moral and ethical red lines for the conduct of judges. By not doing so, he has, by default, become a party to the judiciary's decline during his tenure. 

To be fair, he has passed some praiseworthy judgments, as on decriminalising homosexuality, rights of transgenders etc. But the true test of a superior judge lies in his ability to stand up to the executive, and in this respect, his judgments have been few and far between; in fact, it requires an effort to recall them.

Far too much time was spent in grandstanding, wasting the court's time on issues it had no business getting into — the farmers' protest and the R.G. Kar Medical College cases are just two instances where he seemed to be playing to the gallery. Both cases have diminished the court's image — the farmers refused to heed its suggestions in the first, and junior doctors summarily rejected the orders to return to work in the second.

Perhaps someone should have reminded the chief justice of the first law of public administration — do not seek to expand your area of concern beyond your area of influence.

And even while he is on his way out, Justice Chandrachud will not give up his penchant for empty symbolism: just this week, he has inaugurated his version of the statue of Justice, he calls it 'Lady Justice'. The lady now has no blindfolds ("justice is not blind"), and instead of a sword, now holds a copy of the Indian Constitution. I for one am unmoved by these histrionics, for to me, the three monkeys of the Mahatma are today more reflective of the state of our justice system — blind, deaf and speechless.

One does not write this piece with any joy, but with a deep sense of regret at what could have been. Here was a man, a judge, who is a scholar, a decent human being, a compassionate individual, a penetrative legal acumen who could have done much to bring the country out of the morass it is being shoved into. The tragedy is not that he failed to do so, but that he chose not to. If only he had learnt from the words of that exemplar of virtuous service whose legacy will live on for generations, Mother Teresa: "The world is changed by your example, not your opinions."

Farewell, your lordship; we wish you well.

Views are personal

Avay Shukla is a retired IAS officer and the author of Disappearing Democracy: Dismantling of a Nation and other works. He blogs at avayshukla.blogspot.com