CJI Chandrachud Will Be Appointing Judges Till Mid-2030s. His Moves Need Tougher Scrutiny

True lovers of democracy and diversity will need to scrutinise the two-year tenure of Chief Justice of India D Y Chandrachud with a beady eye.

This is largely because he stands for a particular type of political ideology that goes beyond mere interpretations of the Constitution.

Among Supreme Court judges, Chandrachud can be listed as being more activist and “woke” than some others.

It is, therefore, worrisome that in his very first interview to the media, he has stoutly defended that self-serving institution called the collegium, which selects all judges of the higher judiciary.

The Times of India quotes CJI Chandrachud as saying: “Appointment of judges through the collegium system is intended to ensure fairness and secure the rule of law. The system ensures independence of the judiciary by ensuring that recommendations for appointments are free of external influence.”

He also warned politicians to “avoid grandstanding”.

Before we get into analysing his statement, let us understand one simple fact: Chandrachud will be Chief Justice for two whole years, upto 10 November 2024, and in the current roster of 27 sitting Supreme Court judges, just under half — 12 of the remaining 26, including the four who currently are part of his collegium — will retire before Chandrachud does.

This means, even as the collegium membership keeps changing, Chandrachud will be the strongest and longest-serving member of this self-created institution that has no basis in the Constitution.

CJI Chandrachud will be substantially deciding who will run the constitutional courts practically till the mid-2030s, since Justice J B Pardiwala, No 27 on the current Supreme Court judges’ list in terms of seniority, is scheduled to retire only by 11 August 2030 — almost eight years from now.

CJI Chandrachud will probably be appointing judges who will last till the early or mid-2030s. That is simply too much judicial power to be given to one man for such a long time.

While CJI Chandrachud cannot be faulted for having such a long tenure, he can be questioned on his views, especially since he claims to be a votary of social justice and diversity.

But first, the collegium.  

Article 124 (2) of the Constitution has this to say on how judges are to be chosen:

“(2) Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the High Courts in the states as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:

“Provided that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted”.

A plain and simple reading of this article nowhere suggests that five senior sitting judges will appoint future judges through the collegium, or that the government has no role to play in these choices.

Since the President acts only on the advice of the cabinet, it follows that the executive plays a key role in choosing higher judiciary judges, and the only requirement is that there is effective consultation with other sitting judges in making appointments.

Put more clearly, it implies that the CJI or senior judges can object, even veto, the choices of the executive, not that the government has no role in the shortlisting or appointment of judges.

As for independence, that can be short-circuited by giving sitting judges post-retirement sinecures. The collegium choosing judges is no guarantee of independence. In fact, it could be a facilitator of selectivity and nepotism.

In short, CJI Chandrachud should not be defending the collegium system, a system that no other country in the world has.

“I do wish to prioritise a move towards having a more diverse bench that is closer to representing the diversity of the country.”

His statement will have to be weighed against what he does in his own appointments, but let us make a simple point: it is politicians, who are accountable to the people, who have, in fact, been at the forefront of increasing diversity in political life, and not the judiciary.

Quotas and elevations to the highest offices of the land have happened through the political process, not judicial interventions.

On the other hand, the judiciary is the least diverse among constitutional institutions, as the elevation of Chandrachud himself as CJI shows; his father was CJI for seven years from 1978 to 1985.

So, by the time the current CJI retires in November 2024, father and son would have headed the bench for nine years, that is nearly 12 per cent of the years since independence.

Also, as part of the Sabarimala judgement which outlawed entry restrictions on women in the reproductive age, the CJI effectively ensured that there will be no diversity in religious practice.

The two questions on diversity that CJI Chandrachud must hold himself accountable for are the following:

If diversity is good, why rule against the different practice of just one Swami Ayyappa temple, when no other temple dedicated to the same deity has the same restrictions? Is he promoting diversity or uniformity in the name of equality?

Secondly, if diversity is indeed good, we need that in the judiciary too. We must watch if the judicial appointments he makes include judges not only from diverse backgrounds, but judges whose ideological orientations differ from those of Chandrachud.

The next issue one should take umbrage to is his reference to “grandstanding”.

Presumably, this is a reference to politicians who either oppose the collegium system or attack the judiciary for its decisions on various grounds.

One does not have to defend politicians who “grandstand”, for they can always be removed form office in the next election. But the judiciary can repeatedly make bombastic and grandstanding statements and never be hauled up for it.

Take just two instances, including one involving CJI Chandrachud himself, when he was hearing the vaccine policy case in May last year.

In July this year, a two-judge bench headed by Justice Surya Kant, which was hearing Nupur Sharma’s plea to club all the blasphemy cases against her together, had these remarks attributed to him: “The way she (ie, Nupur Sharma) has ignited emotions across the country. This lady is singlehandedly responsible for what is happening in the country. We saw the debate on how she was incited... She should apologise to the whole country.”

If this is not ranting, or judicial grandstanding to show how the court itself abhorred her alleged blasphemous remarks against the Prophet, what is? In fact, many ex-judges and officials were appalled with this kind of playing to the minorities gallery.

In May 2021, when the Delta wave of Covid started peaking and all states started demanding vaccines for all, Chandrachud, who was hearing those cases, had this to say about the Centre’s dual pricing policy on vaccines, which was anyway only a temporary move to deal with shortages:

“We are not framing policy. There’s an order of 30th April that these are the problems. You will be flexible. You can’t just say that you’re the Centre and you know what’s right. We have a strong arm to come down on this.”

Why should any judge be threatening the executive? This is quite apart from the fact that the judiciary must let a government function and not interfere in policy decisions, unless they are prima facie iniquitous.

Chandrachud goes on to make gratuitous and judgemental remarks, even asking the government “to wake up and smell the coffee”. And this from a CJI who in his Times of India Q&A says “A judge must not become judgmental”.

CJI Chandrachud sends shivers down the spines of those who would like justice to be based more on common sense than ideological. He should rethink his role as head of India’s judiciary over the next two years.