India’s coveted judiciary have never been the same after the unprecedented press conference by four judges of its Supreme Court on 12 January 2018 which cast aspersions on the judicial integrity and political bias of then Chief Justice of India (CJI), Dipak Mishra.
The tipping point for this extraordinary rebellion was the CJI’s questionable verdict on the petition seeking a special investigation into the death of Justice Brijgopal Harkishan Loya under suspicious circumstances. Loya was then hearing the Sohrabuddin Sheikh encounter case in which later day chief of the ruling Bharatiya Janata Party (BJP) and present-day Home Minister, Amit Shah, were among the accused.
The protesting judges had alleged that the CJI was allocating politically-sensitive cases to select benches with the intention of facilitating favourable verdicts for the ruling party. Though some opposition parties had moved an impeachment motion against Justice Mishra in the Indian Parliament – the first CJI and the 4th judge of higher courts to face such a motion – CJI Mishra scraped through with the support of the government.
However, the press conference and the impeachment motion signified the beginning of an era when India’s higher courts were placed under a cloud of suspicion over allegedly partisan verdicts and proclivities. This coincided with allegations of institutional subversion and ideological infiltration after the Narendra Modi government’s taking over in 2014.
Over the years, the Modi government was alleged to have usurped statutory institutions like the Central Election Commission (CEC), constantly targeted for political bias, and the Comptroller and Auditor General (CAG), which gave a clean chit to PM Modi on the Rafale jet deal. PM Modi had also managed to keep the media under check and ensured a legion of unflinching supporters in the fourth estate.
It was thence anticipated that the Modi government will move to control the judiciary, through its amenable veto over the collegium’s appointments or the long-awaited National Judicial Appointments Commission (NJAC). Such a move was seen imminent in order to ensure that sweeping policies and actions of the government, many of which may not be compliant with constitutional principles, are greenlit by the courts.
Judges like Dipak Mishra had already endeared himself to the Hindu nationalist ecosystem even before taking over as the CJI. As a Supreme Court judge, Mishra had ordered the mandatory singing of the national anthem before every screening at cinema halls, while refusing to extend the same custom to other public places, including the apex or high courts.
Most of Justice Mishra’s successors, other than U.U. Lalit who was on a short stint and N.V. Ramana, were seen to have toed the regime’s line or were hesitant challengers. While S.A. Bobde had displayed his RSS proclivities openly, his immediate predecessor, Ranjan Gogoi, incidentally a part of the 4 ‘rebel’ judges, supposedly got into the good books with controversial judgements like upholding the clean chit on the Rafale deal, and, more significantly, presiding over the Ram Mandir verdict.
The Rajya Sabha seat was widely perceived as a reward for Gogoi’s shifted allegiance, yet another unprecedented instance of a retired CJI being nominated to the upper house.
D.Y. Chandrachud’s elevation as CJI in November 2022 was expected to transform the judiciary’s relationship with the government and restore some of its lost credibility, thanks to the stern and ‘upright’ image he fostered as a judicial officer. Few, though, considered the fact that Justice Chandrachud was part of the SC bench that pronounced the Ram Mandir verdict.
His tenure too had its few moments of confrontation with the government, drawing comparisons with his father, Y V Chandrachud’s legacy. The latter was India’s longest-serving CJI and had an image of being unbiased and resolute even while displaying tactical balancing with the government. A particular instance was when, as a SC judge, he refused to uphold civil liberties during the Emergency period of 1975-1977, and reportedly kept a “lofty faith” in the Indira Gandhi government during this controversial phase of Indian democracy.
Perceptions about the current CJI following suit, however, was put to test in January 2024, when, months before the general elections, a bench headed by him rejected the Modi government’s ‘electoral bonds’ scheme for lack of transparency and ordered full disclosure. The order led to revelations on the sources of political funding with contributors to the cash-rich BJP including companies that allegedly benefited from the Modi government. That subsequent action did not follow on these disclosures also raises questions on the purpose behind a judgement with a complex legal framing.
With PM Modi failing to repeat his magic in the Lok Sabha polls and returning to power only with help of allies, it was widely felt that his regime’s stranglehold over accountability institutions, including the courts, will be history.
It was at this crucial juncture that CJI Chandrachud sported controversy by inviting PM Modi to attend the Ganesh puja in the first fortnight of September. The timing and symbolism could not be lost. The image of PM Modi worshipping the idol with the CJI and his spouse aside evoked censure from the opposition and the legal fraternity, with many alleging that the CJI had crossed a sacred line.
The widespread criticism, to which the CJI did not respond, however, prompted a retrospection of his chequered stint at the Supreme Court.
Meanwhile, Delhi’s political corridors speculate whether Justice Chandrachud was destined for a Rajya Sabha nomination, like Gogoi, when his tenure ends in November. Consequently, in what will be another unprecedented move, the possibility of Chandrachud joining the Modi government as law minister could also be speculated. In fact, former CJI P Sathasivam set a precedent by accepting a gubernatorial position months after the Modi government took over while at least 3 Supreme Court judges had contested elections in the past.
Though an unlikely proposition at this moment, Justice Chandrachud’s political makeover cannot be completely ruled out as well, considering PM Modi’s mastery over pulling political surprises. For, Chandrachud as law minister will not only enable his oversight over the drafting and implementation of controversial bills like the Uniform Civil Code and One Nation One Election, but also impart greater acceptability to these legislations besides enhancing the Modi government’s credibility.
As legal circles debate the CJI’s next move after November, it is, however, worth mentioning that actions by top judges, while in office or after retirement, will go a long way in shaping the faith of the polity over India’s judiciary.
