Chief Justice of India D.Y. Chandrachud and Justice Sanjiv Khanna, who will take over as CJI on November 11, are connected by a significant moment in the history of Indian judiciary.
Chandrachud’s father, former CJI Y.V. Chandrachud, and Justice Khanna’s uncle, Justice H.R. Khanna, were on a five-judge bench of the Supreme Court which delivered its verdict in the historic ADM Jabalpur case in 1976. Chandrachud senior was one of the four judges who upheld the presidential order that barred anyone detained from seeking relief through a habeas corpus or any other writ filed in the high court. Khanna senior was the lone dissenting voice that spoke up for upholding the fundamental rights guaranteed by the Constitution.
A life-size portrait of Justice H.R. Khanna adorns the wall of court number two in the Supreme Court. It was unveiled in 1978 and serves as a symbol of judicial independence. More than four decades later, in January 2019, Justice Sanjiv Khanna began his work as Supreme Court judge from the same courtroom.
CJI Y.V. Chandrachud and Justice H.R. Khanna
Justice H.R. Khanna’s bold stand perhaps cost him the CJI’s post. Justice M.H. Beg, who was junior to him, was elevated to the top post by the Indira Gandhi government in 1977. He had resigned and demitted office in court number two soon after. When Khanna junior assumed his seat in court number two on his first day as a Supreme Court judge in 2019, he did look up at his uncle’s portrait for a few seconds. Now, as he is set to take over as the CJI, it may well be a case of poetic justice.
It is only apt that Chandrachud authored the judgment in the privacy case in 2017, overruling the ADM Jabalpur verdict, taking a stand opposite to that of his father and concurring with Khanna senior. “The judgments rendered by all the four judges constituting the majority in ADM Jabalpur are seriously flawed. Life and personal liberty are inalienable to human existence,” he wrote. “The view taken by Justice Khanna must be accepted, and accepted in reverence for the strength of its thoughts and the courage of its convictions.”
The privacy judgment showed that Chandrachud was not afraid to take a line completely different from that of his father and it was among the reasons for the high expectations from him as he took over as CJI two years ago. But speaking at a function during his recent official visit to Bhutan, the CJI made a frank admission. He said, “As my tenure comes to an end, my mind is heavily preoccupied with fears and anxieties about the future and the past. I find myself pondering: Did I achieve everything I set out to do? How will history judge my tenure? Could I have done things differently?”
He said many of those questions remained unanswered and might always be beyond his control, and added that over the last two years, he had woken up every morning with a commitment to give the job his fullest.
As Chandrachud completes his term, the widespread feeling is that his tenure has been rather underwhelming, taking into account the enormous hype that surrounded his elevation to the top post. The legacy that he leaves behind, it is believed, is a mixed bag.
Chandrachud took several initiatives on the administrative side to improve the working conditions in the courts, in terms of infrastructure as also the salaries of judicial officers. According to Supreme Court advocate Sneha Kalita, the CJI’s most important contribution on the administrative side is the digitisation of courts and the continuation of virtual courts beyond the pandemic. “It has actually been a boon to me as a new mother. I could appear virtually in hearings and my work did not get affected,” she said.
Chandrachud has also been lauded for the initiatives he took towards addressing the issues of the disabled. The opening of cafes in the top court and in the high courts where disabled persons have been employed or recruitment of the disabled as Supreme Court staff have taken place in his tenure.
Bishwajit Bhattacharyya, former additional solicitor general
The decision striking down the electoral bonds scheme, the effort made to explore ways to legalise same-sex marriage, the setting aside of the mayoral election in Chandigarh where the returning officer was caught red handed while tampering with the votes to favour the BJP candidate, the crackdown on high court judges for their communal or sexist comments made while deciding on cases and the initiatives taken to safeguard the rights of the disabled are among the decisions that earned Chandrachud praise. However, some critics felt that the court should have stayed the electoral bonds scheme while it decided on it, and the LGBTQIA+ community thought that the apex court let it down by lobbing the ball back to the government on same-sex marriage.
His initiatives towards livestreaming of court proceedings and his decision to do away with the requirement of a law degree for journalists to get accreditation to cover the Supreme Court have been much appreciated.
However, the court upholding the Central government’s decision to abrogate Article 370, or its verdict on the Maharashtra defection matter where it did not restore the Uddhav Thackeray government even as it said the formation of the Shinde government was based on illegality, or its stance on the Adani-Hindenburg matter, were intensely debated, especially because of their heavy political overtones.
It is also felt that Chandrachud has not lived up to his reputation as a judge who is a saviour of the right to dissent. A case often spoken about in this context is that of student activist Umar Khalid, whose bail petitions have been adjourned several times in the top court.
Chandrachud is believed to have authored the Ayodhya judgment, and that information taken together with his recent comments that he prayed before his deity for a solution to the Ayodhya dispute has left the liberals disillusioned with him. Former chief justice of the Allahabad High Court Govind Mathur said most of Chandrachud’s judgments would have far reaching consequences, positive or negative. “Going through his judgments, even a legally sound brain will not be able to place the legal stream of his thoughts in a definite frame. Sometimes he appears to be a progressive judge delivering complete justice and a torch-bearer for development of constitutional and humanitarian laws. At the same time, in some verdicts he travels half way despite being aware of the complete path,” said Mathur.
Also, at a time when the apex court struggles to shrug off the perception of being beholden to the executive, Prime Minister Narendra Modi visiting Chandrachud’s residence for Ganapati Puja came in for severe criticism. “I had very high expectations with the tenure of Justice Chandrachud. But the expectations have been belied because he did not take into account the perception of the common man about the institution of the Supreme Court,” said senior advocate and former additional solicitor general Bishwajit Bhattacharyya. “The prime minister can go anywhere. The question is whether the CJI should have allowed his photograph with the PM to become internationally viral considering how the last man in the country will view this.”
The focus will soon shift to Khanna’s six-month tenure as the CJI. He is extremely low profile when compared with Chandrachud and does not attend many public functions. Supreme Court lawyers describe him as a very strict and no-nonsense judge, but also say that he has mellowed down a bit from his days as a judge in the Delhi High Court.
Some of his Supreme Court judgments include the bail granted to Aam Aadmi Party leaders in the Delhi excise policy case and the refusal to quash an FIR against a journalist for comments made during a TV show while ruling that freedom of speech cannot override the right to life guaranteed under Article 21. He gave a dissenting order in the Central Vista project case as the court gave the green signal to the plan. Khanna said the Centre did not place on record anything to show that it had taken charge of the project or to show that it had considered the objections and suggestions to it.
The cases that are expected to be adjudicated during his tenure include the marital rape matter, the question of constitutionality of the Prevention of Money Laundering Act, 2002, and the issue pertaining to retrospective taxation of e-gaming.
Khanna has highlighted issues such as the rising cost of litigation, delay in deciding cases, the need for promoting alternate dispute redressal mechanisms, using technology to make courts more citizen friendly and using simpler language in orders and judgments. “Justice Khanna is a person of unimpeachable integrity. I am confident that he will rise to the occasion and restore the past glory of the institution. He has for inspiration his uncle who was among the greatest judges the country has had,” Bhattacharyya said.
Chandrachud and Khanna, connected by history, seek to leave their individual imprints on the judiciary.