Who becomes the Chief Justice of India?

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15.10.2022.

Till the recent past, this had been the concern only of lawyers, and that too of the elite among them. The same is the case with almost all democracies, Pakistan would be the sole exception. Appointments to the judiciary, including to that of the highest court of the land, in all democracies, except for India and Pakistan, does not include any kind of sensation. Judges, by the very nature of their job require to live a relatively secluded life. Judges used to wear wigs symbolising that their identity is of little consequence. In a democracy, the role of the judge is to adjudicate disputes between the parties before him/her, and the implications of their judgements on the public at large is largely incidental. The reason is that in a democracy, the elected representatives alone can make laws. Every citizen is symbolically present in the Parliament and every law enacted by the Parliament is with their consent. And the executive is accountable to the Parliament. But in India, the Parliament is no longer the supreme law maker. Every judgement of the Supreme Court, nay, even every word in a judgement is now considered to be the “law of the land”. Matters which fall exclusively in the province of governance, for instance demonetisation, handling of the covid pandemic, etc. were all taken over by the judiciary. It is no exaggeration, today, to say that our country is now ruled by judges. Appointments of directors of the CBI, ED, Central Vigilance Commission, Chairpersons of tribunals, matters which fall in the domain of the executive, all fall under the province of the Supreme Court. The Parliament has increasingly become irrelevant. Who the next CJI is, is therefore, a matter of importance. The engineered hype on the social media and the long army of soothsayers vying for space in glorifying the incoming CJIs is an indication of the irreparable damage that has been caused to the democracy at the cost of the Parliament which, I am afraid, has become virtually redundant.

I, like many, have been closely observing the performance of the Chief Justice designate from the days of his Lordship’s appointment as an ASG. In many ways I am on the same page with his Lordship. He is erudite and hardworking. Justice Chandrachud has authored many outstanding judgments.

We only see the bright shining side of the moon. The moon has another side as well. I am afraid to say this as one who represented thousands of slum dwellers, who were faced with the threat of demolition of their shanties in the implementation of the orders of the Bombay High Court of which Justice Chandrachud was a member. The persecution of the poor started by the Bombay High Court acting on the PILs of the elite like the Bombay Environmental Action Group, started soon after the Maharashtra Assembly enacted the Slum Act giving protection to slum dwellers occupying land for long years. More than 4 lakh slum dwellers were rendered homeless in 1997 in the world’s greatest ever mass eviction. In the year 2004, a bench consisting of Justice Dalveer Bhandari, currently a member of the International Court of Justice, and Justice DY Chandrachud, passed an order directing the demolition of illegal structures, the majority being slums, within 50 mtrs of the CRZ 1. That meant rendering homeless thousands and thousands of slum dwellers who were in occupation of their shanties for many decades. Not a single slum dweller was a party to the 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 so-called NGO, state and central Governments, BMC. In the implementation of the order of the bench consisting of Justices Dalveer Bhandari and Chandrachud, in Cuffe parade, within a radius of 2-3kms of the High Court, thousands of homes of the poor were demolished, their personal belongings were forcefully confiscated and destroyed so that they don’t set up shanties.

In 2010, in Kalwa, Mumbai when the authorities bulldozed 2000 shanties, i took with me some of the women who had come to me, along with their infants, some as young as 2 weeks, on a holiday, to tender a petition at the residence of the then Chief Justice, Mohit Shah. We were denied an audience with the CJ and were asked to approach Justice Chandrachud. Justice Chandrachud granted me a hearing over the phone and directed the authorities to provide temporary accommodation in a rescue home for the few women who were with me for a day. The case was listed on the next day in open Court and i am afraid to say that they 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 Justice Chandrachud has been batting for human rights and for the underprivileged. I hope that Justice Chandrachud will avail of his office as CJI to do something concrete to ameliorate the living conditions of the slum dwellers who constitute 60 percent of the population of Bombay, the relaxation of the Coastal zone regulations, so too, making available salt pans for housing which the government could not 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 Fifty percent of the collegium falls in the exclusive privilege of the sons and nephews of the former judges of the Supreme Court is a glaring red flag that the collegium system is horribly flawed and responsible for rampant nepotism that has resulted in the denial of opportunity to the more eligible but lesser privileged. I hope that the coming CJIs will undo the historical blunder that the collegium system is, and bring back the NJAC or any other just and equitable system of appointment of judges.

[The author is the Founder and President of the National Lawyers Campaign for Judicial Transparency and Reforms, a pan India movement. Apart from being a lawyer practicing in the Supreme Court of India and the High Courts of Bombay and Kerala, he is a gandhian who believes in upholding truth and righteousness irrespective of the perils it might invite.]

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