In November, chief justice of India D.Y. Chandrachud delivered a speech at his alma mater Harvard Law School. During the event, a member of the audience raised a query regarding the recent selection of lawyer Victoria Gowri as an additional judge of the Madras High Court by the Supreme Court collegium. The question was about the allegation that she had engaged in hate speech and was perceived to be close to the Bharatiya Janata Party.
Chandrachud’s response, perceived by many as evasive, involved explaining the functioning of the Indian collegium system to a Western audience. He argued that a lawyer’s personal biases or actions before becoming a judge should not weigh heavily on the collegium, emphasising that India’s judicial system mandates and expects non-partisanship and adherence to constitutional values once a judge takes oath.
It is not coincidental that a question on hate speech was put to Chandrachud in a Western setting. The question could not have been put to his predecessors at the apex court.
Chief Justice’s Court
Historically, the Supreme Court of India, as a custodian of a progressive constitution, has had a liberal constituency both within and outside the country. So does Chandrachud, something that could not be said with clarity and conviction about his many predecessors, especially the ones who assumed office in the last one decade.
The character of the Supreme Court often changes as a new incumbent takes over as the chief justice. It was believed that with Chandrachud at the helm, the court would acquire the character that the constitution trusted it with, that it would become the same old robust institution that it was meant to be as a branch of democracy which holds the executive accountable.
To be fair to Chandrachud, the court under him has lived up to the promise of being a watchdog. The first directives to justify this promise flew straight from his obiter dicta. At the outset, after taking over as the chief justice, he discouraged the controversial practice of government submissions appearing in sealed covers, which was popularised by an equally controversial earlier chief justice Ranjan Gogoi. Chandrachud had expressed his disinclination for this practice even before he took over the highest judicial office. A bench comprising Justice Hima Kohli and him observed in October 2022, “The non-disclosure of relevant material to the affected party and its disclosure in a sealed-cover to the adjudicating authority ... sets a dangerous precedent. The disclosure of relevant material to the adjudicating authority in a sealed cover makes the process of adjudication vague and opaque.”
After he became the chief justice, the court refused to accept the government’s submission, made through attorney general R. Venkataramani, in a sealed cover in a hearing on the issue of the one-rank-one-pension scheme. One could argue that this was the first instance where a reinvigorated apex court vehemently disagreed with the government.
A government that had gotten used to dealing with a pliant judiciary saw the new trend as a rude shock, even if it was not entirely unanticipated to them. Not surprisingly, many groups and individuals had run-ins with an ascendant and assertive apex court. In the Chandrachud phase, every time a bench pronounces a judgement or order that runs at variance with the government’s opinion, a social media smear campaign breaks out against the chief justice and other members of the benches.
The attack on Chandrachud and the court is not limited to social media. Previous law minister Kiren Rijiju vociferously disagreed with the court on many fronts, especially on the issue of the collegium system. He criticised the collegium for being opaque, while the court objected to his remarks and the government’s delay in clearing the names it suggested for judgeship.
Their spat became controversial enough that soon the law minister had been given a different portfolio in the government. However, it is unlikely that anyone in the government would state the law minister’s public criticism of the apex court and the resulting controversies as reasons for this change.
Throughout 2023, a rattled executive and an assertive apex court kept trying to expand their space. The executive knows how important it is to have judiciary by its side. As soon as BJP came to power in May 2014, the government’s first important act of legislation was to pass the National Judicial Appointments Commission Act, which would have given the executive a role in the selection of judges. A constitutional bench led by then chief justice T.S. Thakur struck it down and restored the collegium system.
The tide seemed to have turned in favour of the executive after the famous judges’ revolt against Justice Dipak Misra subsided. Subsequent collegiums made noise about the executive’s delay in notifying their selection of judges but hardly did anything beyond it. In effect, it allowed the executive to tinker with the selection process.
However, in 2023, the Supreme Court has become aggressive on this issue and is pushing the government to notify its recommendations on its earlier selections. The most notable of this tussle is about the recommendation to make senior advocate Saurabh Kirpal a judge in the High Court of Delhi. The Supreme Court collegium has recommended his appointment twice, but the Modi government has stated that it is not comfortable with the foreign origin of Kirpal’s partner. Many, however, interpret it as an objection to Kirpal’s sexuality, who identifies as a homosexual.
In Dual Tone
The court has not shied away from making the government uncomfortable with its decisions on other issues as well. They include the verdict on the break-up of the Shiv Sena in Maharashtra, where it is constantly nudging the assembly speaker to take a decision on the disqualification of the Eknath Shinde faction; ruling in favour of the Aam Aadmi Party government in Delhi on the issue of services in the national capital; and, the issue of the governors sitting on bills duly passed by legislatures in opposition-ruled states.
While the Supreme Court largely regained its mojo in 2023 under Chandrachud, it continued to prolong the misses on individual liberty of the previous eras, especially in the cases involving activists and student and opposition leaders. A Chandrachud-led bench refused to admit a petition filed by 14 opposition parties, which demanded a check on the powers of the government agencies, like the Enforcement Directorate and the Central Bureau of Investigation, which, the parties alleged, targeted its leaders.
The misses make the Supreme Court a guarded champion of progressive constitutionalism, which is exemplified by its attitude towards Gowri and Kirpal: on the one hand, its collegium wants to stay reformist and introduce sexual diversity in judiciary, and, on the other, it is accommodative towards a voice that holds views that run antithetical to the liberal ethos of the constitution.