The historic judgement of the Supreme Court on the abrogation of Article 370 has, without surprise, at least in this writer’s opinion, upheld the negation of the special status of the erstwhile Jammu and Kashmir state, and the creation of the Union Territory (UT) of Ladakh.
The judgement is a near-complete victory for the arguments advanced by the Government of India in court, barring a timeline for the election and a technical point relating to the issuance of Constitutional Order 272.
In realpolitik terms, there was no real way the Republic could have implemented a judgement striking down the Centre’s actions of 5 and 6 August 2019. Once it was done, it was done. The world, sans Pakistan, has anyway moved on from the issue.
Interestingly, the public perception of the Chief Justice of India (CJI), D Y Chandrachud, appears to have shifted significantly in social media.
To the casual observer, the CJI’s pronouncements and public comments seem to be at odds with his actions as a justice of the court. After all, the CJI has made several observations in public and in the courtroom that leave little doubt about his ideological predisposition.
Lest we forget, the CJI wrote the momentous Sabarimala Temple judgement that inflamed the state of Kerala for six months in 2018.
He also wrote the majority judgement in the nine-bench decision (K.S. Puttaswamy v. Union of India (I)), which, in eloquent terms, held that there existed a right to privacy, and, in the following Aadhaar judgement, wrote a passionate dissent that was celebrated by the legal intelligentsia.
In the famous case of Hadiya (Athira), who was allegedly coerced into Islam, Justice Chandrachud upheld the individual right to privacy and negated the concerns expressed by her father and other investigating agencies.
Other similar examples include the dissent in Romila Thapar v. Union of India regarding the arrest of Bhima Koregaon ‘activists’, the same-sex decriminalisation judgement, and the adultery decriminalisation judgement.
However, people who hold the belief that the Supreme Court is an 'executive court', essentially dysfunctional and controlled by the political executive, would likely not have been persuaded by the Chief Justice of India's statements and certain rulings.
For them, the judgement in the Loya case is sufficient to write the CJI off, much like how Justice Sanjay Kishan Kaul has fallen in the eyes of ‘liberals’ for the Article 370 judgement.
It would be remiss not to mention at this point that the CJI is also most likely the author of the decision in the Ram Janmabhoomi case.
As CJI, Justice Chandrachud’s public pronouncements have reflected a certain ideological view, whether it is his riposte to then-vice president of India or to then-law minister Kiren Rijiju. In many ways, he has zealously defended the court from criticism and scrutiny from the political executive.
All this lies, however, in contrast to a long line of judgements that went in favour of the ruling dispensation, the supposed ideological opposite of the CJI, stretching from the Article 370 judgement to the judge Loya verdict.
The same-sex marriage decision would be the most grievous wound for ‘liberals’, but one cannot discount the negative feelings many expressed following the principled stand the then-justice took in the Arnab Goswami arrest case.
The CJI-led bench confirming the constitutionality of Article 370 could be seen as the last straw for 'liberals'. They would probably no longer expect the CJI to confront the Union government on their (liberals) pet issues.
Earlier, rumours abound regarding the term of the CJI’s predecessor, U U Lalit. It was speculated that the Constitution would be amended to extend the term of the then-chief justice.
It came to nought, but there was genuine concern among the supporters of the government and celebration among ‘liberals’ about the two-year term of the current CJI.
A fair disclaimer to this exercise would be that those who support the Narendra Modi government have consistently under-appreciated, or are even oblivious to the capacity of, the Solicitor General and Additional Solicitor General.
Further, the “liberal” projection of the judiciary as an “effective” opposition to the Modi government was misguided, to say the least. The rule of the judiciary that CJI Chandrachud has is essentially conventional to the establishment.
He might speak out on majoritarianism and more, but that is essentially his view of the constitutional paradigm. It does not necessarily reflect his political opinion in holding the Modi government “to account”. Certain vested interests might wish for him to do so, but that does not reflect the reality.
Because the CJI, due to his suave engagement with the media and his “screen presence”, is the most publicly prominent head of the Supreme Court, the public’s projection of him is more than ever before.
One reason that people are surprised by the CJI is that both sides have ‘pigeonholed’ Justice Chandrachud into whichever side they believe he is on.
A full evaluation of the current Chief Justice of India is too premature at this stage; there are still 11 months to go before he retires.
In addition, many more substantive questions of law are yet to be decided, with controversy already brewing over the assignment of some “politically sensitive” cases.
As of the day though, the tenure of the CJI can be regarded as one that has defied the expectations and predictions of those itching for a confrontation with the executive.
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