The dichotomy between cji chandrachud’s words and deeds in 2023

The verdict broke with tradition and did not carry the name of the judge who wrote it. But it’s _widely believed_ that it was authored by Chandrachud. In 2018 as a Supreme Court judge, he

had been part of the reconstituted bench that dismissed PILs seeking an independent investigation into the 2014 death of Judge Loya. Chandrachud wrote the verdict and _described_ the PILs as

a “vituperative assault on the judiciary” and an attempt to “seriously scandalise” judges. It’s worth remembering that the Judge Loya case had been the tipping point for four senior judges

to call an _extraordinary press conference_ in January that year. But hope springs eternal, which brings us to 2023. At the outset, there’s some praise. The Supreme Court disposed of _52,000

cases_ this year, apparently the highest in six years. (The court itself described it as a “watershed moment in the nation’s legal history”). There’s a _changing attitude_ towards the

government’s beloved “sealed covers” and he’s _embraced technology_ in the judicial system. The Supreme Court weighed in favour of the AAP government over the Delhi ordinance, though the BJP

government _passed it anyway_. Last month, it _criticised_ Kerala Governor Arif Mohammed Khan for “sitting” on bills for two years. As for the rest? India has the _highest share_ of

undertrials in prison since 1995. And who is surprised? 2023 is the year that the Supreme Court _consistently adjourned_ bail hearings for Umar Khalid, in jail since September 2020.  It

first came up for hearing on May 18 when six weeks were given to the Delhi police to file a response. During the second hearing on July 12, the bench gave the police 12 more days and said

the matter would only take “one or two minutes” during the next hearing. The CJI’s court adjourned hearings on July 24, August 9, August 17, August 18, September 5, September 12, October 12,

November 1, and November 29 – when it was adjourned to January 10, 2024. And there’s more at play.  As CJI, Chandrachud is the “master of the roster”, allocating cases and constituting

benches at his discretion. But earlier this month, __Article14___ reported_ that at least eight cases had been moved to Justice Bela M Trivedi in violation of Supreme Court rules, which

require the case to be “retained by the senior judge before whom the case was first listed or listed before a judge hearing a similar case”. These cases include Umar Khalid’s bail plea,

petitions challenging the draconian UAPA, a bail plea of Bhima Koregaon accused Mahesh Raut, and corruption charges against AIADMK leader Edappadi K Palaniswami.  Justice Trivedi had

previously served as law secretary in Narendra Modi’s government in Gujarat. At least three senior lawyers – _Dushyant Dave_, _Kapil Sibal_ and _Prashant Bhushan_ – publicly flagged

irregularities with the allocation of cases.  CJI Chandrachud addressed the issue when the lawyer of AAP leader Satyender Jain protested the listing of Jain’s bail petition in front of

Justice Trivedi. “It is very easy to fling allegations and letters,” _CJI Chandrachud said_. “...If the case is listed before a judge, the judge will take a call. I will not say anything.”

What more did he need to say? WHEN PROGRESSIVE MEETS REGRESSIVE  On October 17, the Supreme Court finally delivered its verdict on same-sex marriages, five months after it had reserved its

verdict. That morning dawned with thousands tuning into the livestream of proceedings on YouTube. They were told the five-judge bench had produced four judgements and CJI Chandrachud went

first. _He said_ it was incorrect to characterise marriage as a “static and unchanging institution” and that governments must not discriminate against the “right of the queer community to

enter into union”. He _said_ the state must not discriminate against someone “on the basis of a characteristic over which the person has no control” and said there must be no restrictions on

the right of non-heterosexual couples to adopt. But he also said it was for Parliament to decide. And so, despite half-hearted minority judgements from CJI Chandrachud and Justice Sanjay

Kishan Kaul, the Supreme Court ruled 3:2 that it could not legalise same-sex marriages in India. The ball is back in the government’s court. As Muskan Tibrewala, one of the queer lawyers who

argued the case, _told ___The Hindu__: “Considering that the government has not been supportive of our rights, and historically the Supreme Court being the upholder of queer rights, the SC

has failed to deliver its responsibilities.” Two months later, the Supreme Court unanimously upheld the central government’s August 2019 stripping of Jammu and Kashmir’s special status. In

his _part of the judgement_, while upholding the power of the President to abrogate Article 370, Chandrachud said the President and Parliament take “hundred if not thousands” of decisions

and every action could not be subject to judicial review. He reasoned that Article 370 had only been a “temporary provision”and that J&K retained no element of sovereignty when it joined

the Indian union in 1947. It’s reminiscent of the Supreme Court’s verdict in _January 2023_ that found “no flaw” in the government’s disastrous demonetisation exercise of 2016. Then there

was the case of Justice S Muralidhar, who once convened an extraordinary hearing of the Delhi High Court over the Delhi riots and BJP leaders making provocative comments. Hours later, the

central government notified his transfer to the Punjab and Haryana High Court. In January 2021, Muralidhar was appointed Chief Justice of the Orissa High Court. In September 2022, the

Supreme Court collegium, which is headed by the CJI, _recommended_ his transfer as Chief Justice of the Madras High Court. The central government sat on this proposal until CJI Chandrachud,

in April this year, finally recalled the order. Muralidhar finally retired on August 7, 2023 at the age of 62. Why didn’t the collegium recommend his elevation to the Supreme Court? Actual

lawyers _argue_ _this_ better than I could. But by this point – is anyone surprised? Perhaps it’s unfair to chide Chandrachud. Google “Chandrachud lecture” – he seems to give a lecture at an

institute of eminence every week or two – and he says plenty that is good, sensible and important about issues like gender stereotypes, pay equity, free speech, and online harassment.   But

past his progressive spiel outside the courts, his actions within them have been conventional, perhaps even conservative. What are courts for if they’re constantly batting it back to a

government that’s made it abundantly clear what it plans to do? Despite his liberal platitudes, he’s fundamentally a status quo judge who’s loath to rock the boat, even if the union

government pushes the bounds of constitutionality to their very limit (and beyond). In the past few years, how many times has the Supreme Court struck down actions of the union government

when challenged? Its 2015 striking down of the National Judicial Appointments Commission was arguably in self-interest. Further back in time, it struck down Section 66A of the Information

Technology Act, originally legislated by a previous UPA government. One might include its verdict on the Delhi ordinance, for good measure, which upheld the Delhi government’s powers. In a

way, Chandrachud is in a peculiar position. Liberals are disappointed because he’s proved to be no different from his predecessors, claims of “boldness” be damned. And right-wing trolls hate

him too; he’s been subject to _vicious online trolling_ for being “woke”, “feminist” and “anti-Hindu”.  He’s got a year to go before his tenure ends in November next year. It remains to be

seen whether his legacy will remain that of a status-quo CJI who spoke pretty words outside the court but did little of significance within, or someone who can reinstate the role of the

judiciary as a balancing force in Indian polity.  _THIS ARTICLE WAS ORIGINALLY PUBLISHED IN NEWSLAUNDRY AND CAN BE READ HERE._