Often, The Supreme Court Is Neither Right Nor Final: Chintan Chandrachud
Every Supreme Court in the world has relied on Robert Jackson’s validation of apex court power. The U.S. Supreme Court Justice once said, “We are not final because we are infallible, but we are infallible only because we are final.”
But in India, the Supreme Court has often not only been fallible, or wrong, it has also not always been final, argues Chintan Chandrachud in his new book—The Cases That India Forgot.
Chandrachud emphasises, in the preface itself, that the Indian Supreme Court and High Courts have often remained silent and failed to prevent the misadventures of Parliament and government. And, on some occasions the courts have in fact created, catalysed or contributed to these misadventures.
It’s institutionally easier for the court to be behind the (fundamental rights) curve, Chandrachud says in an interview to this journalist by way of analysis of the court’s abdication.
The reason for that is, when the court is either in step with public opinion or is behind public opinion its decisions are easier to implement. Its decisions are that the majority agrees with. On the other hand, if the court goes further than that, if the court takes decisions which are ahead of the curve, which are not necessarily in step with but are leading public opinion, those decisions can in fact be harder to implement. So, in some sense it’s the convenient path to take. But not necessarily always the right path.Chintan Chandrachud, Lawyer and Author
Chandrachud argues that often, the Supreme Court isn’t even final. “It can be a constitutional amendment to overturn the court’s decision, it can be a number of steps that the government decides to take in order to sidestep compliance with the court’s decision.”
In the book, he narrates 10 cases, many of which underscore these two points, among others. Eminently readable, even for those not interested in the minutiae of the law, the stories capture the important legal or constitutional principle of the case as also the social and political context of their times. There’s an interesting account of a personal spat, of sorts, between two leading judges, Justices Chandrachud and Bhagwati, at the time of deciding a case that saved the Constitution of India. And, while the author is gentle in his assessment of the courts’ weaknesses and failures, he is also resolute in showing how India’s judiciary has often functioned behind the curve. Of rights.
31-year old Chandrachud was born into a family of judges. His grandfather, YV Chandrachud, was the 16th Chief Justice of the Supreme Court of India, and his father Dhananjay Chandrachud is a serving justice at the apex court. He currently practices law at a London firm and says he has no ambition for justiceship. Not yet at least.
Watch | Chintan Chandrachud in conversation with Menaka Doshi
Read an edited transcript of the interview here...
The Abdication Of The Courts
Menaka Doshi: You’ve noted in two important things that underlie your book and connect the dots (stories). The first point you've made is, that courts often have abdicated the role of protecting fundamental rights. I quote from the book that -
“There is a large body of work that extols the role of our constitutional courts in safeguarding us from the indiscretions and misadventures of Parliament and the government. This narrative is only partially true, and is often misleading. On several occasions, the courts have remained silent and failed to prevent these misadventures. On still other occasions, the courts have created, catalysed or contributed to these misadventures.”
Why have you focused on this in your preface and why do you think the courts have failed us?
Chintan Chandrachud: I think this is a particularly important point to make in the times that we live today. I think there's a general view that the protection of rights is within the exclusive preserve of the courts. In other words, it's left neither to the citizens nor to the parliamentary process nor to the public at large to protect our rights and that's a matter that should be left first and last to the courts. I think that's a view that we need to rethink and the reason for that is that courts don't always or don't necessarily protect rights. My book includes several examples in which the courts have failed to do so- where the courts have abdicated their responsibility or avoided their responsibility to protect rights but where other institutions have stepped in and done so.
Just to give you an example, one of the cases that I discuss in the book is the Kartar Singh case. This is a case where TADA ( Terrorist and Disruptive Activities (Prevention) Act), which is an anti-terrorism statute from the 1980s is challenged. What happens in that case is that the court takes a long time to hear the case - about nine years to hear the case - and following that period, actually upholds the legislation. It's infact the public consensus that results in the legislation not being extended shortly after the courts judgment. So, what I say in that case is, it's not because of but inspite of the court’s judgment that rights are protected.
Menaka Doshi: In your study of not just the cases that you have profiled in the book, but in your study of the law - why do you think the courts have so frequently been behind the curve? Whether it is in standout occasions as the Emergency or in legislative situations such as the TADA case...
Chintan Chandrachud: I think this simple answer probably is that it's easier. It’s institutionally easier for the court to be behind the curve and the reason for that is, when the court is either in step with public opinion or is behind public opinion its decisions are easier to implement. Its decisions are that the majority agrees with. On the other hand, if the court goes further than that, if the court takes decisions which are ahead of the curve, which are not necessarily in step with but are leading public opinion, those decisions can in fact be harder to implement. So, in some sense it's the convenient path to take. But not necessarily always the right path.
Menaka Doshi: Then what distinguishes the judiciary from our politicians?
Chintan Chandrachud: Well, our judiciary is inherently meant to be counter majoritarian.
Menaka Doshi: (interrupts)... when it comes to upholding rights, let's say in the case of the Emergency or otherwise it has very infrequently proven to be counter majoritarian. So, what distinguishes today our judiciary from our politicians if the judiciary prefers to either stay in step of majority opinion or just a step behind but never actually take the lead?
Chintan Chandrachud: So, that's one of the concerns which I articulate in the book. I think it’s fair to say that there are some areas where the court does lead public opinion from time to time. So, free speech is one of those where you might say the court is fairly progressive in its decision-making processes but there are other areas where the court is either in step with or behind.
Let me give you a couple of examples- national security legislation is one of those classic examples where you might say the court tracks public opinion or is behind public opinion and if you were to look at national security cases over the decades, if you look at POTA, AFSPA, TADA - any of the statutes on national security that have been enacted, the courts’ decision has certainly been one that is consistent with the majority view if you like. That's one set of examples. You can also use another set of examples - cases on gender, cases on personal rights- and there was an opportunity for the court in 2013, I'm talking about the Section 377 case, to at that stage, you might well say, lead public opinion. The court failed to grasp that opportunity and five years later, the court did in fact overturn its previous decision and strike down or read down Section 377. Now what happens in this five years? You might well say that what happened was that public opinion itself changed and therefore the court was now acting in step with public opinion.
Menaka Doshi: But in 2013, the Delhi High Court was ahead and it was the Supreme Court that actually fell behind, wasn't it? I know we look at the judiciary, especially the senior judiciary - which is the High Court and the Supreme Court - as one sort of monolith. And the standouts have been not judges that have not respected fundamental rights but those that have actually stood up. They have been the few and far between - whether it's a Justice HR Khanna- from the times of the Emergency or Justice AP Shah from 2013 from the Delhi High Court. The broad bulk of Supreme Court senior judiciary or high court senior judiciary seems to be behind the time. So, this is the thought that I’ve often grappled with - why is it that the one body built constitutionally to protect us has so often failed to do so? The Supreme Court was supposed to be the bulwark that sort of protected us from all of this and it just hasn't worked out that way.
Chintan Chandrachud: It's interesting you use that example because my book also includes several cases where the High Court judgment has been more progressive than the Supreme Court judgment and the Supreme Court has in fact gone ahead and restrained the High Court and changed the High Court's view. It's hard to know why that's the case - we have so many examples of this. It's hard to know why that's the case but one reason might be that the Supreme Court is somewhat more conservative because it’s conscious that it's the last court of appeal. I mean this is very much a function of our own appellate structure where the expectation in all significant cases is that an important matter that the High Court decides will almost certainly be appealed to the Supreme Court and will be decided by the Supreme Court. So, perhaps where the High Court can gain some comfort is from the fact that it is not the final opportunity, it's not the last throw of the die- whereas the Supreme Court is. So, that might be part of the explanation. I don't think that’s a good enough explanation but that might be a rationalisation.
Menaka Doshi: A lot of people understand the Supreme Court’s supremacy through the saying that ‘the Supreme Court is not final because it’s right but right because it’s final. In your preface you make the other point that this book seeks to make - to dispel the myth that courts have the final word on all the questions that arise for their determination. Explain that to me and why we must understand that very clearly- because in this country today almost every time we're let down by our politicians we look towards the courts for rescue and we are so often disappointed.
Chintan Chandrachud: So, the reason I say this in the book is that I think the broader public understanding of the legal system is quite linear. In that, the legislature enacts a law, it's then up to the government to implement policy and to implement the law and it's the court that makes the final decision about the constitutionality and the legality of both the law as well as the government’s implementation of the law. Now I think viewing the legal system in this linear way is far too simplistic and in each of the cases that I've analysed in this book- what you'd notice is there is in fact an iterative process that takes place between all institutions - between parliament, the government and the courts - where the court's decision is merely a part of the process rather than a culmination of the process.
So, you have several cases where following the court's decision, the government takes a further decision and that decision can involve a number of things. It can be constitutional amendment to overturn the court’s decision, it can be a number of steps that the government decides to take in order to sidestep compliance with the court's decision. So, what you see very often is - formal compliance on paper without complying with the judgment in spirit. It can also be a review petition; remember a review petition is a step initiated by the government in order to seek to overturn the court's decision. So, I think it's rather simplistic to say that when the court decides a matter that matter is final - as matter of practice that's simply not how things turn out.
The Keshav Singh Case
Menaka Doshi: I can't possibly discuss all the stories in your book for two reasons one we'd be short of time and second, I don't want to give away all of it. But I have picked a couple which are trying to make larger, important points especially in this day and age. I'm going to start at the very first story - the case of Keshav Singh. A case which is about the balance of power between two co-equal constitutional institutions, the Parliament or in this case the Assembly and the judiciary or in this case both the High Court and the Supreme Court. Now, at the time the Supreme Court verdict in the Keshav Singh case went in favour of the judiciary, if the same would play out today how do you see this going down?
Chintan Chandrachud: So, if the same were to play out today, I would venture to say that the Supreme Court would once again protect its own authority. The one thing that the court historically has been good at doing is to protect its own authority and its own domain. So, a good example of this is the basic structure doctrine, that’s seldom been used. Now the basic structure doctrine just by way of explanation, enables the court to strike down constitutional amendments that are inconsistent or that abrogate the basic structure of the Constitution. This is a radical power that's used rarely in exceptional circumstances. Most of those exceptional circumstances involve situations where the court is protecting its own domain and so the most commonly struck down amendment is what we as lawyers call an ‘ouster clause’ which is the Parliament saying that the courts don't have the authority to review or to test a particular piece of legislation or a particular statute for compliance with fundamental rights or other things. The court has consistently struck that down. If you want a more recent example, we have the NJAC case from 2015 where the court again struck down a constitutional amendment that sought to change the appointments process for judges. So, I wouldn’t be surprised, if a similar confrontation where to take place today, If the court were to put its neck out and try and protect its position once again.
Menaka Doshi: It's partly comical how this case came into being and also very serious because it touches many of these issues that you have just spoken about.
Chintan Chandrachud: So, it starts off with a worker in Gorakhpur in Uttar Pradesh who essentially distributes a defamatory pamphlet about his local MLA, and he's hauled up for breach of privilege. He initially refuses to enter an appearance in the Parliament, there's an escalation of events and it reaches a situation where the Assembly requests his imprisonment and he’s in prison for a period of six days. Inexplicably on the final day, he files a petition one day before his sentence is about to be completed. He files a petition claiming that he could not be imprisoned in this way. The matter then goes to the Allahabad High Court and the Allahabad High Court takes it up. In the meantime the Assembly itself is now offended that the Allahabad High Court has taken up the matter and the Assembly seeks to haul up not only Keshav Singh, the individual himself, but both of the High Court judges that heard the case as well as Keshav Singh's lawyer. That's the matter that's ultimately referred to the Supreme Court as a matter of Presidential Reference.
Menaka Doshi: ..and the Supreme Court had to decide whether the High Court had the right to intervene in a matter that was predominantly within the jurisdiction of the Assembly?
Chintan Chandrachud: Correct.
Menaka Doshi: ..and the Supreme Court ruled that the High Court did have the right. You're saying if it were to play out today, that the court would probably rule exactly the same way. Did you agree with what went on?
Chintan Chandrachud: I think that the court would rule in much the same way and I think in principle the Supreme Court's decision was right. I don't have any objection to the court's decision in principle. My only trouble with the court’s decision is that just before the Keshav Singh case, which is the issue of what the relationship is between fundamental rights such as the right to life, the freedom of speech and so on, and parliamentary privilege. In the event of a conflict between a fundamental right and parliamentary privilege - which one prevails? And, the court is in two decisions. So, in the Keshav Singh case and a previous case called the Searchlight case, the court arrived at contradictory conclusions. So, in one case the court says no well the fundamental right prevails, in another it says well no parliamentary privilege prevails.
Now, the difficulty is that, that resulted in a huge amount of ambiguity and the only conclusion that you can draw from this is, that parliamentary privilege probably prevails over some fundamental rights but not others. The trouble with this scenario is that this is resulted in Parliament not enacting its privileges into law and so what was envisaged at the time that the Constitution was enacted was, that the initial set of privileges would get codified into law by Parliament and the initial set of privileges was linked to the privileges in the House of Commons in England and that was just meant to be a transitional provision. Now, because of this group of judgments including Keshav Singh, Parliament has had no incentive to codify the privileges. As soon as you codify the privileges, they become an ordinary law and they become subject to fundamental rights. So, why clearly make them subject to fundamental rights when you can benefit from some ambiguity...
Menaka Doshi: ..and that position stands even today?
Chintan Chandrachud: That position still stands.
Menaka Doshi: As a citizen why would this matter to me?
Chintan Chandrachud: As a citizen, this matters because the question you need to ask as a citizen is, to what extent can you criticize members of parliament? Can you defame a member of parliament? Can you libel a member of parliament? And if you do so, what happens? Are you merely subject to the legal process or are you also subject to a legislative process? Now, as we know Keshav Singh was subject to a legislative process - he was sent to prison by the Legislative Assembly and it's hard to know in those situations how someone in Keshav Singh’s position can put up a defence. So, it's essential for a citizen in this situation to know ex-ante what they can and cannot do and what kind of defence they can mount.
Amending The Constitution - Minerva Mills Case
Menaka Doshi: To move to the second story i want to highlight - this is the Minerva Mills case from 1973. If I may call it in layman terms it's the ‘saving the Constitution’ case.
Chintan Chandrachud: So, what this case is about is, that we have the Kesavananda Bharati case- that's the backdrop to this, that's the basic structure case which we've talked about. Following the basic structure case, the Congress government makes amendments to the Constitution in order to undo the basic structure case. So, it makes amendments to the amending clause of the Constitution.
Menaka Doshi: Essentially to say that Parliament can amend the Constitution as it pleases, and those amendments are not within the purview of Supreme Court review.
Chintan Chandrachud: That's simple, that’s right. Now, Nani Palkhivala was representing a mill which was based out of Bangalore which had been nationalised. But what he does is, rather than challenging the right to property - that had also been deleted from the Constitution. That was by the Janta government. Now rather than challenging the right to property that had been deleted, he decides to use this case as a vehicle, as a conduit in order to challenge the Congress government amendment.
Menaka Doshi: There's no way to read Nani’s mind but I'm guessing based on your study, that he didn't take on this case just to fight against the nationalisation of a mill, but maybe somewhere in his mind these introductions by the Congress government- specifically Articles 368 and 31C, these were amendments that he wanted to have overturned or at least attempt to do so and so he used this route?
Chintan Chandrachud: Yes, I would have thought so. Of course we don't have any clear evidence that there were ideological reasons but I think there is strong circumstantial evidence. There were ideological considerations particularly because he had taken a position as an Ambassador to the United States and I quote an interview he gave to the New York Times in the book- where he talks about how he was looking forward to working with the U.S. government and how he agreed with President Carter’s philosophy and the like. He ultimately resigns from that position and one of the early cases he argues following that resignation is Minerva Mills.
Menaka Doshi: What does Nani Palkhivala argue differently from the Kesavananda Bharati case that sort of helped save the Constitution?
Chintan Chandrachud: So, the basic principle postulated in the Kesavananda Bharati case is that, Parliament has no right to abrogate, alter or destroy the basic structure of the Constitution- the core of the constitution. What Parliament now does, intelligently you might say, is to amend the amending clause to say that well we can amend any part of the Constitution and the court does not have a right to review any part of the Constitution that we amend. So, this is a clarification of the amending clause of the Constitution. What Palkhivala uses is that the limited amending power is itself a basic feature of the Constitution and what he says is, that the recipient of a limited amending power cannot use that very power to convert the power into an unlimited amending power. Because that converts the creature of the constitution into its master, so this is the argument that Palkhivala quite intelligently uses.
Menaka Doshi: In your view, should the Constitution be open to wide-ranging amendments?
Chintan Chandrachud: I'm sceptical about whether the Constitution should be open to significant amendments. I think there is room for a basic structure doctrine. There was certainly room for a basic structure doctrine in the political context of those times. I think there still remains room for the basic structure doctrine today but I should emphasise that I think it should be restricted and I think we should be careful about deploying it wantonly in all manner of cases about what the government is doing and the like. It should be deployed fairly narrowly in my view.
Menaka Doshi: How do you respond to arguments that why should the Constitution as a living document not change with the passage of time. Especially, when a majority of the citizens represented by their elected representatives in Parliament are in favour of a particular change - then should the Constitution not bend to that?
Chintan Chandrachud: I think the basic structure doctrine, at least the way I look at it, is perfectly consistent with that view and it’s consistent for the reason that what the basic structure seeks to protect, is the identity of the Constitution, simply the fundamental identity of the Constitution. You can make significant amendments to a document without changing its identity. What you can't do is to change some of its features in a manner that changes the very identity and the character of the document itself. It’s really only that radical nature of change that the basic structure doctrine seeks to prohibit. It doesn't seek to restrict the evolution of the Constitution based on changes within the country, socio-economic changes and the like.
Why Justice YV Chandrachud Changed His Mind
Menaka Doshi: I'm going to come back to the Minerva Mill case because there are many interesting facets to this. Two judgments were delivered in that case, one by Justice YV Chandrachud, your grandfather, who delivered the majority decision that struck down both the contentious articles, and the second by Justice PN Bhagwati, also a renowned judge of his time, who wrote a separate opinion. He agreed that Article 368 should go but he didn't quite feel the same way about Article 31C. Now, here are two or three things I want to question you about. When Justice Chandrachud came to this majority decision in the Minerva Mill case it went against his own view in the Kesavananda Bharati case. In the Kesavananda Bharati case he had ruled against the basic structure doctrine. In the Minerva Mills case he upholds the basic structure doctrine. How did you interpret that? An acknowledgment that he was wrong in the first place or that whatever the Supreme Court had previously decided in majority was right?
Chintan Chandrachud: I think both. I don't necessarily think he was compelled by judicial discipline to take the decision that he did because if he was, then that's not really an acknowledgement that he was wrong that’s merely an acknowledgement that he has no choice but to comply with the Kesavananda case.
Menaka Doshi: Because there the majority decided that basic structure prevails?
Chintan Chandrachud: Exactly, because that was a 13-judge bench, this (Minerva Mills) is a much smaller bench, and a smaller bench is bound by a larger bench. I think if he wanted to, there were certainly opportunities and avenues available to depart from the basic structure case or to uphold the amendments to Article 368 on the basis of the amendments that had been made by the Congress government and the reason for this is- that many scholars argued at the time that the basic structure doctrine was in fact grounded in text, it was grounded in the language of the constitution itself. Now, if you have an amendment to the text itself which clarifies what the amending power is, how can you say that it's grounded in the text? You might well say that the rationale for the basic structure doctrine had been dislodged. So, there was an avenue available for him not to comply with Kesavananda.
Menaka Doshi: Then why did he not take it?
Chintan Chandrachud: I think because, my view at least is that, he probably acknowledged that his own view in Kesavananda was wrong.
Menaka Doshi: You arrived at this through a study of the judgment objectively or is it something through family conversation?
Chintan Chandrachud: So, this is purely on a study of the judgment. I've never had an opportunity to discuss Minerva Mills with him. I wish I had, but this is based on my study.
Menaka Doshi: Did you ever have a chance to talk to him about the Kesavananda Bharati case?
Chintan Chandrachud: I don't think so, maybe very briefly, but my memories of that are rather faint and so all of the analysis and the conclusions that are drawn in this book are based on materials which are accessible to the public at large and not just to me.
Justice Chandrachud Vs. Justice Bhagwati
Menaka Doshi: Interestingly, in this case Justice Bhagwati wrote a separate opinion - he agreed that Article 368 should be struck down but not Article 31C - saying that fundamental rights had no meaning if directive principles were not upheld. In the story you speak of disputes between the two judges - Justice Bhagwati and Justice Chandrachud.
Chintan Chandrachud: So, the background to this is, and of course part of this is based on conjecture. But the background to this is that Justice Bhagwati is appointed to the High Court before Justice Chandrachud, but Justice Chandrachud gets elevated to the Supreme Court before Justice Bhagwati- resulting in a long tenure of chief justiceship for Justice Chandrachud and a much shorter tenure of chief justiceship for Justice Bhagwati. This is the broader context and when you look at the Minerva Mills judgment in that context, you notice some disagreement between the justices on several points- but you see it gets to personal disagreement as well. So, one example of this is that in his upholding of Article 31C, Justice Bhagwati quotes a provision from Justice Chandrachud’s own judgment in the Kesavananda case. Justice Bhagwati also in the Minerva Mills case complains about the fact that there was no judicial conference, there was no opportunity for a meeting of minds.
Menaka Doshi: Basically, that all the judges on that bench of Minerva Mills did not discuss the decision before articulating it in an order - that's his complaint?
Chintan Chandrachud: Yes, that’s his complaint in Minerva Mills.
Menaka Doshi: Which is also similar to the complaint that Justice Chandrachud had made in the Kesavananda Bharati case. Where he brought up the fact that there was not enough judicial consultation before the decisions were arrived at.
Chintan Chandrachud: Exactly. So, you see Justice Bhagwati drawing upon much of what Justice Chandrachud has said in the Kesavananda case.
Menaka Doshi: ...and using it against him. So why did you wade into this? I also wondered whether you were nervous when you were writing this because you have to be objective as an author- you're dealing with two very renowned judges one of who was also your grandfather.
Chintan Chandrachud: I waded into this because I found this far too interesting not to include in the book. It formed a part of the socio-political dynamics at the time and in addition, it had an interesting practical implication. The government (then) tries to review Minerva Mills and one of the significant arguments that the government uses is in fact Justice Bhagwati’s point that there was no judicial consultation. So, therefore the government says that this is not a view of the bench, but these are views of individual justices. I don't think that’s an especially persuasive argument to me but that's the argument that the government does in fact make.
Menaka Doshi: That review failed, right?
Chintan Chandrachud: Exactly, that review failed. That review never really went through beyond an initial hearing that takes place before the five justices.
The PIL Puzzle
Menaka Doshi: The next case in the book I want to discuss is the Dorairajan case which is reservations in education institutions. You traced the early beginnings of the Public Interest Litigation (PIL) system to that case. In that, Dorairajan, the complainant, did not actually apply for admission to a college. She filed this case representing the upper caste of Brahmins.
Chintan Chandrachud: So, I won’t necessarily say that's the very origin but that provides amongst the earliest traces of PILs that you would find in the Supreme Court because you had this rather peculiar situation. Now, this case involves two students- Srinivasan and Dorairajan. Srinivasan has actually applied for admission and been told that he will not be securing admission on the basis of reservation. Circumstances where if there was no reservation there would be a seat for him. Dorairajan on the other hand is in this unique position where she decides not to apply at all, but speculatively files this petition saying that if she were to apply, she would not secure admission because of this reservation policy. So, what she's effectively doing is to represent not just herself, but her community of Brahmins, claiming that the government order implementing reservation was unconstitutional.
Menaka Doshi: This Dorairajan case is the post emergency Supreme Court isn't it?
Chintan Chandrachud: So, this Dorairajan case is from the 50s, it's from one of the early times.
Menaka Doshi: The reason why I ask this is, and I may be completely wrong because I'm not a scholar of this, but the increase in public interest litigation and the expansion of the scope of powers of the Supreme Court, especially after the emergency- Justice Bhagwati was the flagbearer of many of these, seemed to me almost like a redemptive effort of the court. So, I’m trying to link what happened in the Dorairajan case which was a different time period altogether to the growth and escalation in the number of PILs in India and to today where we have the problem of misuse of that route. To try and understand why the court has allowed for this to get so out of hand?
Chintan Chandrachud: So, the dominant narrative is, chronologically you have the emergency taking place in 1975. Then, you have the ADM Jabalpur decision in 1976 which most people say is the darkest hour in the Supreme Court's history and thereafter there’s an effort by the Supreme Court to widen access in order to redeem itself, in order to enhance its reputation after the ADM Jabalpur judgment. But what's interesting is - in parallel with that effort the court takes a number of decisions in which it doesn't in fact necessarily reflect itself in the best light. I've covered many of those decisions in these cases including the national security decisions, including decisions on gender and the like. Where this PIL story begins, it does begin with the court taking up petitions from those who are genuinely in need. So, it starts with the likes of bonded labourers and communities that are at the margins- it increases representation of those that don’t have representation in the mainstream political process. I think what happens thereafter is that PIL transforms into this tool for a huge community, all manner of people to access the court and file petitions claiming a large number of reliefs. So, therefore there’s an increasing concern that PIL is being abused, misused - not necessarily being used in consonance with its original intentions.
Menaka Doshi: As a journalist who covers court and legal matters the one thing I struggle with the most is to try and understand this contradiction that when it comes to protecting fundamental rights, the Supreme Court has not had a good record at all. A very chequered one as we've already partly discussed so far. Yet it constantly seeks redemption by expanding the PIL route or by allowing for an expansion of its own jurisdiction through the PIL route. I’m not able to understand what court this is. Why is it that the court can’t do what it's mandated to do constitutionally? That it fails at that and then keeps seeking redemption by either fixing a monkey problem in Delhi or trying to create a quasi-executive solution for pollution. But it doesn't stand up when there is an internet ban in Jammu and Kashmir.
Chintan Chandrachud: My reading of this situation is, that when the court, on the one hand say, addresses the monkey problem in Delhi, its decision is clearly not a decision that is going to be politically controversial. It's not one of those that’s a political hot potato. At best, what you might say is that it's a decision which politicians have refused to take or are quite happy to defer or to dump on the courts. On the other hand, when you have cases where rights genuinely need to be protected, those cases tend to be far more politically controversial where the court will be concerned about the political implications of its decision, and I don't say this necessarily in a party political sense. Where the court will be concerned about the consequences of failing to comply with its own decisions. I think the other way of looking at this is, that the majority in view is probably that the monkey problem is a problem and needs to be dealt with.
Menaka Doshi: ..but the shutdown of all communication services in a state in this country is not a problem?
Chintan Chandrachud: Exactly, that might well be the majoritarian view and the difficulty is that the court inherently is expected to be a counter majoritarian institution.
Menaka Doshi: ...yet it never does turn out to be that.
Chintan Chandrachud: Often in the recent past, it has failed to live up to that reputation or that expectation.
Menaka Doshi: Not just the recent past, going back 30-40 years.
Chintan Chandrachud: Absolutely.
Uniform Civil Code: The Unfinished Agenda
Menaka Doshi: You trace the jurisprudence on personal law versus fundamental rights in the Narasu case. Now before we move ahead, I want you to first outline the Narasu case in a couple of lines and then I'll put my question to you about this conflict, a long-standing one, between law personal law and rights.
Chintan Chandrachud: Sure, so the Narasu case involves a case where a number of people were prosecuted under a law that prohibited bigamy in Bombay - these are Hindus. The question that arises before the Bombay High Court, now this is the only high court case that I’ve covered in the book, every other case I’ve covered in the book is a Supreme Court judge case. The question that arises before the Bombay High Court is to what extent our personal laws are subject to the scrutiny of fundamental rights and when I say personal laws, I mean uncodified personal laws - personal laws that have not been codified into any kind of statute.
Menaka Doshi: So, religion-led practices or community-led practices?
Chintan Chandrachud: Exactly. And these can arise from scriptures, the shastras and the like. The decision that the court reaches in that is uncodified personal laws will not be subject to the scrutiny of fundamental rights and therefore, they paradoxically are above and beyond fundamental rights and have a status that is higher than the status accorded to democratically elected or enacted legislation.
Menaka Doshi: How does this square with the fact that the Constitution has a provision for the enactment of a Uniform Civil Code in India?
Chintan Chandrachud: Now, the decision in Narasu case was made in an interesting social-political context. It was that the court was conscious of Article 44 of the Constitution in which it has charged the state with endeavouring to secure a uniform Civil Code for the citizens. So, my reading of Narasu is - the judges they were two famous judges- Justice MC Chagla and Justice PB Gajendragadkar - so, the Narasu case really is a case that would apply to a transitional period between the Constitution having been enacted and a Uniform Civil Code coming into force. The judges probably didn't expect that the bad judgment insulating personal law from the scrutiny of fundamental rights would continue in place for decades.
Menaka Doshi: It still does right?
Chintan Chandrachud: It still does.
Menaka Doshi: So, even today religion-based, or community-based personal laws rank over fundamental rights?
Chintan Chandrachud: Uncodified personal laws rank above fundamental rights. Now courts have been trying to find different ways of sidestepping Narasu without overturning it and they do this in a number of ways. So, one way in which they do it is to, for example, say that this is not personal law. In fact this is not religious personal law, it's something else, it's just practices and therefore it is subject to fundamental rights. Another thing they say is, does this fall within the essential religious practices or not. If it doesn't, then again you don't benefit from the protection of Narasu. So, there are ways in which the court has attempted to sidestep it both in the distant past and the recent past, but Narasu has never been decisively overturned.
Menaka Doshi: Let me connect this to the present. We have a government that is keen and has articulated its desire to bring in place a Uniform Civil Code. You have said in your book that even though the Constitution promised a UCC there was trepidation at that time that it would hurt India’s plurality. Is it time, good time, right time, to consider a Uniform Civil Code in India?
Chintan Chandrachud: So, the difficulty that I have with debating the Uniform Civil Code is that it’s often debated in rather abstract terms without considering what the terms of the Uniform Civil Code will be in particular.
Menaka Doshi: So, you need to see the fine print before you decide?
Chintan Chandrachud: Absolutely. That's what I'm saying. I don't necessarily think that the Uniform Civil Code is a bad idea in principle, but the concern that many would have is the Uniform Civil Code would essentially be used as a euphemism for a code that governs one community or that draws from the laws that apply to one community and seeks to apply it to everyone else. Now, if it’s implemented in that way then you might well say that that's not the UCC that was intended by the Constitution or that’s not a UCC that's desirable for India. On the other hand, if you have a UCC that draws from a number of communities, that upholds rather than rejects the plural values of India, then you might well say that that's a good idea.
Menaka Doshi: It’s such a contentious issue that even if the UCC were to be legislated there's a fairly good chance that someone would find a reason to challenge it in the Supreme Court. How do you think the courts would be able to measure whether the UCC actually does justice to the plurality of India and doesn't necessarily only represent a particular religion- the majority religion Hinduism?
Chintan Chandrachud: So, the court will probably need to determine to what extent the UCC draws from the practices of different religions and the extent to which the UCC respects different religions and different ideologies. If it does that, and this will be tested based on say the right to equality, the right to religious freedom and the like. If it does, then the court might well uphold the UCC. If it doesn't, I wouldn’t be surprised if the court will apply a greater amount of scrutiny to consider it.
Menaka Doshi: I am not trying to pre-judge this. I am just trying to understand the framework within which all of us should be prepared to understand any event of this nature.
Chintan Chandrachud: The other point to add is- that any government that enacts a UCC will undoubtedly rely on Article 44 itself to say well you shouldn't really be challenging this, because we've complied with the directive principle of Article 44. But the debates will probably be over, number one is this a Uniform Civil Code at all - uniform being the keyword or is this doing something else. Two, even if it is, is it the kind of Uniform Civil Code that was envisaged by Article 44 or is this just a pretext to do something else. So, I think that's probably where the debate may well start once if and when the UCC is enacted.
Kashmir: National Security Vs. Fundamental Rights
Menaka Doshi: The last portion of your book is devoted to national security cases. There are many landmark ones in them, you’ve already articulated some of the interesting points in the TADA case, so I won’t go case by case. What I do want ask you is again a broad question - about the the Supreme Court’s squeamishness when it comes to being able to weigh accurately or correctly national security concerns versus fundamental rights. Let me use a contemporary issue - the communication ban in Kashmir. Now, it's one thing that the court rules in favour of national security. It’s another thing that the court has refused to even hear the case (and the habeas corpus case) for weeks on end. You explained that the court finds it easier to sidestep controversial issues or stay where the majoritarian view is. What explains this almost cowardly behaviour, if I may call it, that the court has refused to even listen to the cases in good time?
Chintan Chandrachud: It's difficult to say. What I’d say is two things- a reticence in dealing with national security cases robustly is not unique to India. You see this in several jurisdictions. The second thing I'd say is that some of it might well be attributed to the law of unintended consequences, rightly or wrongly.
So for instance in this case, the court may have been concerned about what the impact of its decision would be if it decided to lift the communications blockade. Now remember one of the issues that arises in this case, quite remarkably in my view, is that the government plays fast and loose with the Supreme Court as to what form of communication blockade is in place, in which parts of the state. In fact, at one point the government almost seems to suggest that it itself is not very clear on what forms of communication are blocked, where, for what period and the like. One thing that a robust court could well have done is to say that your starting point, the default rule is that all communication is open and it's only from that starting point that you then can justify closing communications in one region or another. If the government is unable to explain or unable to justify what communication blockades are in place where and when, then the blockade must be lifted entirely, and the government needs to start afresh. Now, the court may have been worried about doing this because again, it won't have known what the impact of that sort of decision would be - whether it will result in unrest, violence and the like. Again, I don’t necessarily think that that's a good justification for what the court has done. In my view a judgment that is a hundred- and thirty-page judgment that seeks to pronounce on the constitutionality of a communications blockade, must in fact pronounce on its constitutionality rather than merely laying down important lofty principles.
Menaka Doshi: You are judging the judgment; I'm saying for weeks they didn’t even consider hearing it. I was most astonished. You can fault the courts for picking one view or another, for picking a view against what the government has done or standing with the government. But what I simply cannot find any justification for, is the incredible delay that the court allowed take place before even giving these cases a hearing.
Chintan Chandrachud: In this instance as it happens, I’m less concerned. I do agree with you to an extent that the delay is inordinate. So, if you were to look at the that the period between the lockdown, which is the 4th of August to the court's judgment which is the 10th of January, you have about five months. I think five months is slightly long but that's not what concerns me most about the court’s judgment. In fact, I would have been rather happy had the court decided to rule robustly and taken an extra month if it wanted to. So, one thing that the court does is, it refuses to force the government to produce all of these orders imposing the communications lockdown and simply passes the buck back to the government and says these are the principles, go ahead and apply them and we'll see what happens going forward. I wouldn't mind it if the court took an extra month, asked for all of those orders and then made a final and decisive decision in respect of those orders. Due process does take time but what matters for me is not necessarily the length of time but the impact of the court's decision itself, and what disappointed me here was the ultimate product, the ultimate decision.
Supreme Court And ‘Traditional Avoidance’
Menaka Doshi: You've looked at how the Supreme Court has dealt with fundamental rights, national security and all of these conflicting issues over the last seven decades now, as you’ve profiled these stories in your book. Every generation feels as if my god, this decline in the Supreme Court, this decline in the judiciary, its inability to respond to issues of our time, it's the worst that ever has been. But it's actually been quite constant over the last four or five decades at least, right?
Chintan Chandrachud: It has. I think it's been constant. I think the one difference that you can articulate between say now and four decades ago is simply volume. The Supreme Court now deals with much more than it dealt with 50 years ago or even 25 years ago. Of course, the Supreme Court of the 50s, is an 8-member court, the Supreme Court of 2020 is a 34-member court. The reason for which this is important is that when you deal with large volumes you also need to think about priorities.
When you deal with large volumes, what that necessarily implies is that some cases are more important than others and the pecking order with which you decide these cases becomes especially significant. My concern is that the court is increasingly using the tactic, I say it in a colloquial sense I don't mean it necessarily very cynically, but the court is increasingly using this tactic of traditional avoidance - which is to refuse to consider significant cases, matters of constitutional importance until you get to a situation which is irremediable.
If you want an example of this just look at the electoral bond scheme case - where there is a credible challenge to the government's electoral bond scheme. Several elections have now passed, and the court has not made its decision, it's nowhere near making its decision. Now, how do you deal with the impact that scheme has had on all of the elections since that scheme has come into place. You'd of course draw a blank, there is nothing you can do.
Menaka Doshi: The only question the answer to which I would like to determine is whether the court has simply delayed the hearing of this matter and the arriving at a decision because it's burdened with too many other matters, all jostling similarly in importance, or the court is running away from deciding some of these things?
Chintan Chandrachud: I would probably give the court the benefit of the doubt and say that it’s burdened with far too much. But where I wouldn't give it the benefit of doubt is on prioritization. It needs to think very carefully about rostering which cases need to be considered with alacrity and which cases, monkeys in Delhi just as a hint, can be considered later in the day.
A Family Of Judges
Menaka Doshi: Final question, you come from a family of judges. In this book you’ve reflected on the decisions made by your grandfather, we discussed them in the Minerva case, you've reflected on a decision made by your father, in the Sabrimala case. What was it like to be able to look at their judgments objectively having obviously grown up in the same house?
Chintan Chandrachud: So, I tried my best to look at their judgments taking with an arm’s length distance and to be detached when viewing their judgments. I've to some extent commented on and criticized some of my grandfather's judgments as well. One thing I described in the book is that following the Mathura case, where the Supreme Court made an egregiously wrong decision, a bad decision- a group of academics wrote to my grandfather who was Chief Justice at the time asking him to review the decision and he didn't do so. So, I've tried to take a take a step back and not reflect upon dinner table conversations with the family and the like while writing this book.
Menaka Doshi: They didn’t seep into your consciousness as you were writing this?
Chintan Chandrachud: I tried not to let them seep.
Menaka Doshi: To be fair, your father overturned a decision or two of your grandfather’s. What it's been like to grow up in a family of two very renowned judges?
Chintan Chandrachud: It’s has genuinely been quite inspiring, but I think the one thing that I've learned from many of those conversations and interactions is, to hold the same values without necessarily being bound by the same views. Therefore, I'm entitled to and I will take independent views so long as I conform with the same broader underlying values and culture.
Menaka Doshi: You are currently a lawyer with a London-based firm, do you intend to return to India and pursue the same career path or professional path as your father and grandfather did?
Chintan Chandrachud: I'm not one of those that makes five-year plans.
Menaka Doshi: Are you intending to become a judge? Will you be the third generation of judges in this family?
Chintan Chandrachud: As of now I'm happy in London I intend to be there for the short term and thereafter who knows - we'll see.