One year of Chief Justice of India DY Chandrachud [Part 2]: Relationship with the Centre, criticism and Supreme Court functioning

In this first part of this article, we looked at the significant judgments Chief Justice of India DY Chandrachud has delivered during his first year at the helm at the Supreme Court, the observations he has made out of court and the important cases before him that await adjudication.

In this piece, we look at the relationship of the 50th CJI with the Central government, how he has addressed criticisms surrounding the institution and how the members of the Bar view the changes he has effected at the apex court so far.

The 50th CJI and the Central government

In the recent past, the Supreme Court has been deemed by some sections of the legal commentariat as leaning towards or even siding with the Central government on several key issues, raising doubts on its independence.

The recent years have also seen several decisions go in the government’s favour. These include the cases of Aadhaar, Ram Janmabhoomi, EWS Reservation, Demonetisation, Central Vista and Rafale.

The current CJI’s tenure runs through a general election year, and as such, his relationship with the Union government as exhibited through his judicial work bears some interesting insights.

Two of the three previous CJIs (NV Ramana and SA Bobde) had been criticised for keeping key constitutional issues pending, including the challenges to the Citizenship Amendment Act (CAA), the Article 370 case and the electoral bonds case. The latter two cases have been reserved for judgment by the current CJI.

So does this trend continue in the present day? Have murmurs that the top court has been turning into an ‘executive’ court been addressed during the tenure of CJI Chandrachud?

Observations and rulings against the Centre

If one observes, the line of questioning by CJI Chandrachud during hearings often translates to his point of view and obiter in judgments. In a significant number of them, he pulled up the Central government counsel.

"Individual right to adopt is not affected by the marital status of the individual," the CJI had remarked during the course of the same-sex marriage case, where the majority judgment (of which he was not a part), among other things, refused to recognise civil unions or adoption rights for homosexual couples.

He had also remarked that same-sex relationships and queer rights are not urban-elitist concepts as claimed by the Central government.

These particular remarks made in response to submissions by the National Commission for Protection of Child Rights (NCPCR) and the Centre, which had opposed same-sex marriage, found place in his minority judgment.

During the hearings in the Shiv Sena party split case, the CJI directed some stern remarks and questions at the Maharashtra Governor, a BJP leader who in effect had supported the local party faction backed by the Central government.

In February, the Court had taken exception to the then Maharashtra Governor commenting on formation of government in the State, wondering how a Governor can comment on political alliances and government formation in the State.

Eventually, in the unanimous judgment authored by the CJI, the Supreme Court had held that the decision of former Maharashtra Governor Bhagat Singh Koshyari to call for a floor test based on the request of 34 MLAs of the Eknath Shinde faction was incorrect.

However, it refused to reinstate Thackeray as Chief Minister since he had resigned before the floor test.

The current CJI has discouraged the practice of submissions in sealed covers, something a former CJI - Ranjan Gogoi - was heavily criticised for. The Central government has often been at the receiving end of remarks in this regard and these remarks have made their way into judgments.

In February, a CJI Chandrachud-led bench had rejected a suggestion made by the Central government in a sealed cover with respect to the Hindenburg Research report on the Adani Group of companies and the consequent market impact.

The issue calls for complete transparency and if the Court accepts the government suggestion, it would amount to keeping the other side in the dark, the Court underscored.

"We will not accept the sealed cover suggestion by you because we want to maintain full transparency and if we accept suggestions in sealed cover it is like we have kept it away from other side as people will think it is a government appointed committee," the CJI had said.

In March, a CJI-led bench had told Attorney General R Venkataramani that the top court is planning to put to an end to the practice of allowing litigants to make submissions in sealed covers.

"I am personally averse to sealed covers. There has to be transparency in court....If we follow sealed covers, then High Courts follow it and there needs to be an end to it," the CJI had stated.

Soon after, while permanently lifting the ban on the MediaOne channel, he stated a judgment that sealed cover proceedings violate the principles of natural justice and leave litigants in the dark.

Notably, during the course of hearing the electoral bonds case, the CJI had remarked,

"The problem with the scheme is that it provides selective anonymity. It is not confidential qua the SBI or qua the law enforcement agencies...A large donor will never really put his or her head on the line by being in the books of account of the State Bank of India. This is what the scheme is capable of because of selective anonymity, selective confidentiality."

It remains to be seen whether such observations will make its way to the final judgment.

Judicial appointments

Appointments to the higher judiciary have moved at a snail's pace under the Modi government, which has sat on files indefinitely, even when the Collegium has reiterated recommendations.

Notably, the Collegium headed CJI Chandrachud started making its views clear on the government rejecting/returning names already reiterated. A case in point being Senior Advocate Saurabh Kirpal, whose elevation to the bench was deferred on account of his sexual orientation.

The Collegium in that case gave a detailed account of why it disagrees with the government’s rejection of the name and even quoted from the intelligence reports the government had relied upon.

A second example was when it asked the Union Law Ministry to notify previously proposed and pending names before recent recommendations.

Coming to the Collegium itself, the workings of the body responsible for judicial appointments have often been criticised for being shrouded in secrecy. Has that changed during CJI Chandrachud's tenure?

In the case of the elevation of Justice Aravind Kumar to the Supreme Court, the Collegium revealed the dissent of Justice KM Joseph who had stated that the appointment can be considered at a later stage.

While more detailed than previous ones, the resolutions passed by the Collegium headed by CJI Chandrachud are still arguably vague. The specific factors considered while recommending a judge for elevation are still not spelt out.

Justice Sanjay Kishan Kaul, who is also a member of the top court Collegium headed by CJI Chandrachud, had taken it upon himself to ensure the Centre does not indefinitely sit on Collegium decisions to transfer and appoint judges.

Justice Kaul had stated that it was "troublesome" that the Centre was selectively picking, choosing and appointing judges whose names were recommended by the Collegium for appointment to the higher judiciary.

The Bench has made it a point to reiterate pendency figures to the Attorney General appearing for the Centre, and it has been urging that more approvals take place before the next hearing.

Responses to Vice-President and Law Minister

CJI Chandrachud has been outspoken in his responses to comments made by Vice-President Jagdeep Dhankhar and former Law Minister Kiren Rijiju on the judiciary and the Collegium.

Dhankhar had criticised the basic structure doctrine for allegedly giving primacy to the judiciary over the legislature, at the cost of the doctrine of separation of powers. In response, the CJI stated that the basic structure doctrine is like a North Star that guides judges.

Rijiju, during his tenure, had made several comments on the functioning of the judiciary. In one instance, he said that long court vacations were a source of inconvenience for litigants and that he would convey the message to the judiciary.

The next day, the CJI made it emphatically clear that there would be no departure from the established practice of not having vacation benches during the two-week winter break.

Another statement made by the former Law Minister was that a constitutional court like the Supreme Court of India should not hear bail application and frivolous PILs.

The next day, a Bench headed by the CJI said in court that it is duty-bound to act in matters of personal liberty and grant relief.

"If we do not act in matters of personal liberty and grant relief then what are we doing here? What is Supreme Court doing and is it not a breach under Article 136. Supreme Court exists to hear to the cry of such petitioners. We burn the midnight oil for such cases," he had said.

Criticism of the Supreme Court of India

No court of law is ever immune from criticism, and the Supreme Court of India is no exception. Pendency, lack of diversity in the judiciary, opaqueness in functioning and delay in hearing cases of constitutional importance are some of the issues which continue to require redressal.

At the end of 2022, less than two months after CJI Chandrachud was sworn in as CJI, there were over 69,511 pending cases before the top court.

According to an article by the Supreme Court Observer, the number of pending cases dropped in the first half of 2023. This, according to the article, is the first time in five years that case pendency dropped in the first half of a year.

As of November 16, 2023, however, 79,361 cases are pending before the Supreme Court, 30% of which were instituted in 2023 alone.

Regardless of this fact, the drop in pendency in the first half is still notable since several Constitution Benches were also active at this time, dedicating their attention to a select few cases.

The delay in constituting five-judge and larger Constitution Benches is another issue that has been critiqued over the years. During the tenure of CJI Ramana, Constitution Benches were not constituted at all. It was only during CJI UU Lalit’s 73-day tenure that such benches were set up.

CJI Chandrachud has ensured that the momentum gained during his predecessor’s tenure has not slowed down. In his tenure, CJI Chandrachud has constituted six five-judge benches and one seven-judge bench. Verdicts were delivered in eighteen five-judge bench cases and hearings have been completed and verdicts reserved in several other matters. Cases have been listed before seven-judge and nine-judge benches as well.

Another facet of the CJI - his power as Master of Roster - has also come under the scanner in the recent past. During the tenure of former CJI Dipak Misra, four Supreme Court judges themselves critiqued the use of this power in a press conference in 2018. The main gripe of the judges was that the CJI was either assigning important cases to himself or refusing to place them before the other senior-most judges of the Court.

While the Court relies on automation in various aspects of its functioning, the manner in which benches are constituted, and the parameters the CJI employs to make his decisions in that regard, remain shrouded in mystery. Several studies on the topic have found that the CJI’s power to assign cases to benches can and does influence the outcomes of cases.

It interesting to note that CJI Chandrachud has assigned himself to every single Constitution Bench he has set up so far.

A lack of gender and caste representation continues to plague the judiciary. CJI Chandrachud has often hinted that it is the bulk pool which was created decades ago that forms the basis of current judicial appointments. He went on to say that since more women lawyers and district judicial officers are now in the system, the next few decades will indeed see a rise in more women judges being appointed to High Courts and the Supreme Court.

Functioning of Supreme Court: Voices from the Bar

The opinion of lawyers appearing before the apex court by and large is that Chandrachud J has bettered the functioning of the Court since he took over as CJI.

Solicitor General of India Tushar Mehta says that since taking over at the helm, CJI Chandrachud has initiated a complete makeover of the functioning of the Supreme Court.

"System of morning mentioning has never been this smooth. Changes made in the functioning of the Registry has ensured that less and less oral mentioning is required," he said.

The digitisation initiatives taken under CJI Chandrachud's stewardship find special mention.

"There is a revolution in the E-governance of the Supreme Court. First three courts are completely paperless. His soft and loving rebuke has ensured many technologically challenged lawyers like me to switch over to digital files. E-filing has already overtaken physical filing in a matter of a few months and has saved the time of lawyers and their staff members substantially."

The SG went on to say,

"Courts of the world must be looking at this systematic working of the world's most powerful and still world's most clogged constitutional court with amazement. Other courts of the world have already started being inspired by the new systems implemented by Dr. Justice Chandrachud."

Additional Solicitor General Aishwarya Bhati agreed and lauded CJI Chandrachud's push to integrate technology in the judiciary.

"The use of technology was something that COVID required us to do. So what he started as the head of the E-Committee was to ensure that the use of technology in the justice delivery system found a strong platform to stand firmly on, and this is going to stay for a long time even after he demits office. This really helps litigants who are the real consumers of justice, for whom the justice system was put in place. It makes it easier for them wherever they are, it becomes a force multiplier for lawyers."

Speaking on the impact such initiatives have had on women lawyers, Bhati said,

"Litigation has always been a male bastion and technology will be that one catalyst that will let women lawyers stay on. Women lawyers don't have sufficient support and wherewithal to last in the profession, but technology will help in this. It has helped build bridges, lots of mothers with children have continued with their profession, their motherhood and professional responsibilities. So they have not had to make a choice between those two."

Senior Advocate Siddhartha Dave summarised the administration of the Court and dispensation of justice under CJI Chandrachud by using the words of renowned poet Dylan Thomas:

"Light breaks where no sun shines;

Where no sea runs, the waters of the heart

Push in their tides;"

Senior Advocate Nidhesh Gupta opined that the hallmark of Chandrachud CJ's tenure so far has been his zeal to take up pending Constitution Bench matters.

"Their disposal in turn has had a ripple effect on resolving cases pending in various courts across the country," Gupta said.

"Another standout has been the immediate listing of cases involving personal liberty and the grant of relief, irrespective of religious belief or political affiliation. Streamlining of listing procedures is another important aspect of his tenure so far," he added.

Advocate-on-Record Amit Pai seconds the notion that listing of cases at the Supreme Court has become smoother.

"It is not like before where the Advocate-on-Record had to go and plead for the most basic right of listing. Today, if I file my matter in order or with minimum defects, and make out a case of urgency, the matter is listed without unnecessary effort. Even the matters where there is no grave urgency, the registry is processing them at a much better pace."

Senior Advocate Mahalakshmi Pavani said that CJI Chandrachud's attempt to democratise the profession is evidenced by the E-SCR project.

"He has brought an innate sense of compassion and destigmatisation by signing off on a legal dictionary of appropriate terms and acceptable forms of addressing the litigant by the courts in their judgments," she said.

"Apart from his penchant for technology, he is alive to the constraints of space and has formed a committee to expand and create better infrastructure and space for all stakeholders of the judiciary," Pavani added.

Critics would argue that India needs a strong judiciary to face up to a strong executive, with a view to maintain the balance of powers under the Constitution. This becomes even more important amidst calls for a "new Constitution" and a Central government that shows disregard for constitutional principles. And the onus to "strengthen" the judiciary falls upon the CJI.

CJI Chandrachud has unanimously strengthened procedures at the top court, and has been instrumental in ushering in technology in courts across the country. But age-old criticisms levelled against the apex court are yet to be addressed. Will we see an improvement on these fronts?

With one year left in his tenure as CJI - and 2024, it bears reminding, happens to be an election year - all eyes are on the highest court of the country and the person who sits at the helm.