Until recently, who becomes the Chief Justice of India had been the concern of only lawyers, especially the elite among them. The same is the case with almost all democracies; Pakistan would be the sole exception. Appointments to the judiciary, including the highest court of the land, in all democracies except India and Pakistan, does not evoke any kind of sensation. Judges, by the very nature of their job, require to lead a relatively secluded life.
Judges of yore used to wear wigs, symbolising that their identity is of little consequence to their work. In a democracy, the role of the judge is to adjudicate disputes between the parties before him/her, and the implications of their judgements for the public at large are largely incidental. The reason is that in a democracy, only the elected representatives can make laws. Every citizen is symbolically present in Parliament and every law enacted by Parliament is assumed to have their consent. And the executive is accountable to Parliament. But in India, the Parliament does not seem to be the supreme law-maker any longer. Every judgement of the Supreme Court, nay, even every word in a judgement pronounced by the judges, is now considered to be the “law of the land”.
Matters which fall exclusively in the realm of governance (for instance, demonetisation, handling of the Covid pandemic, and so on) were all taken over by the judiciary. It is no exaggeration to say that the country is now ruled by judges. Appointments of Directors of the Central Bureau of Investigation, the Enforcement Directorate and the Central Vigilance Commission, and Chairpersons of tribunals, which fall in the domain of the executive, now fall under the province of the Supreme Court. Therefore, the question, who the next Chief Justice of India is, is a matter of importance. The engineered hype on social media and the battalion of soothsayers vying with one another to glorify the incoming CJIs is an indication of the irreparable damage to democracy and its supreme institution, Parliament.
I, like many, have been closely observing the performance of the Chief Justice- designate D.Y. Chandrachud from the days of his appointment as the Additional Solicitor General of India. He is erudite and hardworking. And he has authored many outstanding judgments.
We see only the bright shining side of the moon. The moon has another side as well. I say this as one who represented thousands of slum-dwellers, who were faced with the threat of demolition of their shanties following the orders of the Bombay High Court, of which Justice Chandrachud was a member. The persecution of the poor started soon after the Maharashtra Assembly enacted the Slum Act in 2004 to give protection to slum-dwellers occupying land for long years. Acting on the Public Interest Petitions of elite non-governmental organisations like the Bombay Environmental Action Group, a bench consisting of Justice Dalveer Bhandari, currently a member of the International Court of Justice, and Justice Chandrachud, passed an order directing the demolition of illegal structures, a majority of them slums being within 50 metres of the Coastal Regulation Zone-1. That meant rendering homeless thousands and thousands of slum-dwellers who had been living in their shanties for many decades. Not one of them a party to the legal proceedings. The elementary principles of justice and basic human rights were thrown out the window. There was no amicus curiae to speak about their rights. The Court heard a battalion of senior advocates representing the NGO, the Central and State Governments, and the Brihanmumbai Municipal Corporation. Following the court order, thousands of homes of the poor were demolished and their personal belongings forcefully confiscated and destroyed so that they don’t set up shanties again. All this in Cuffe Parade, within a radius of 2-3 km of the High Court.
In 2010, in Kalwa, Mumbai, when the authorities bulldozed 2000 shanties some of the affected women came to me, along with their infants, some as young as two weeks. As it was a holiday, I took them to the residence of the then Chief Justice, Mohit Shah, to file a petition against the demolitions. We were denied an audience with him and were asked to approach Justice Chandrachud, the judge in charge. He granted me a hearing over the phone and directed the authorities to provide temporary accommodation for a day in a rescue home, to the women who were with me. The case was listed for the next day in open Court. However, the affected women were not granted any relief. They were forced to the streets.
It is gratifying to note that the views of Justice Chandrachud have broadened since then. I now see news reports about how he has been batting for human rights and for the underprivileged. I hope he will make use of his high office now to do something concrete to ameliorate the living conditions of the slum- dwellers who constitute 60 per cent of the population of Bombay and to relax the coastal zone regulations in such a way as to make available salt pans for housing – which the government could not do because of judicial interference. This will go a long way in undoing the errors of the past.
The collegium which Justice Chandrachud will preside over will have Justices Joseph and Khanna, son and nephew of two former judges of the Supreme Court. That 50 per cent of the collegium falls in the exclusive privilege of the sons and nephews of the former judges of the Supreme Court is a glaring fact that highlights the fact that the collegium system is horribly flawed and is responsible for rampant nepotism, which has resulted in the denial of opportunity to the more eligible but less privileged members of the legal fraternity. I hope that the CJIs to come will undo the historical blunder that the collegium system is, and bring back the National Judicial Appointments Commission or any other just and equitable system of appointment of judges.
