Prof. Satya Narayan Misra in Bhubaneswar, November 15, 2022: There is a surging hope that with Justice DY Chandrachud assuming charge as CJI, with a fairly longish tenure of two years, the Supreme Court will come out of its stupor & vacillation and decide on a few pending serious constitutional issues without further delay.

His predecessor CJI Lalit, with a short tenure, must be complimented for deciding the EWS reservation issue and giving a dissenting opinion viz that by limiting EWS to the General category, the equality principle has been flouted.

The dissent CJI Lalit gave along with Justice Bhat reminded me of Justice HR Khanna’s dissent in the famous ADM Jabalpur Case (1976) when he came down heavily on arrest without trial during the imposition of emergency’, as an anathema to the right to life& liberty’. Forty-one years later a full bench of the Supreme Court in the Puttaswamy Case (2017), not only made the right to privacy a right to life but also overruled the majority verdict of the ADM Jabalpur Case.

The majority viewpoint included Justice YV Chandrachud, who is the father of Justice DY Chandrachud. It’s a rare judgment where a son overruled the father and wrote:’ A constitutional democracy can survive when citizens have an undiluted assurance that the Rule of Law will protect their rights against arbitrary invasion by the state.

The view taken by Justice Khanna must be accepted in reverence for the strength of his thoughts and courage of its convictions’. It’s also a rare point in judicial history when a CJI is bequeathed by his son, through the process of merit & heredity!

There are three major challenges to the courage of conviction that will be confronted by CJI DY Chandrachud. The first challenge is on the Electoral Bond scheme introduced in 2018 in which the donor’s identity will remain confidential. By giving autonomy and anonymity to the corporate donor the schemes hit at the very roots of liberal democracy & quite clearly foster crony capitalism.

One of the central mandates of the BASIL III agreement is that all banks must ensure transparency and greater disclosure The Chief Information Commissioner has also been insisting on the disclosure of donors’ details who have deposits into bonds. Inexplicably. the Supreme Court has been sitting over this case for the last four years.

The other major challenge which is awaited is whether the Aadhar Bill 2016 should have been considered a money bill or not. While four judges upheld it in Puttaswamy Case, Justice Chandrachud considered it a ‘fraud on the Constitution. It is well known that the Modi government turned it into a money bill so that it cannot be scuttled in the Rajya Sabha where BJP did not have a majority.

The Speaker chimed in with the government, overlooking the merits of the challenge from the opposition led by Jairam Ramesh, the MP. whose legality was challenged. Justice Chandrachud had pointed out that as per Art 110(1), a money bill would include tax proposals, regulation of borrowing, and appropriation of money out of the Consolidated Fund of India & Aadhar bill did not pertain to such proposals by the FM.

In the 2019 Roger Mathew Vs South Indian Bank Ltd Case (2019), the court revisited the money bill classification & suggested that the issue should be referred to a larger bench. Quite clearly the CJI must get this reviewed by a larger bench of seven as it also involves reviewing the discretionary power of the Speaker.

It may be recalled that in Kihoto Hollohan Case (1992), the Supreme Court decreed that it has the power to do a judicial review of the Speaker’s action. It considered sole arbitration by the Speaker violative of basic features of the Constitution and reiterated the majesty of the judicial review principle, which was firmly planted by CJ Marshall in the Marbury Vs Madison Case (1803) by striking down arbitrary legislation by the US Congress.

The third challenge is on the legality of abrogating Article 370 and converting a State into UT in the case of Jammu & Kashmir. The overwhelming view is that taking away special dispensation to J&K and providing an opportunity for Indian citizens to set up business in J&K in terms of Art 19(1)(g) is a step in the right direction, though it may not strictly meet stipulation of Article 370(3).

However, trifurcating J&K into UTs for harvesting political bonanza in Jammu by BJP quite clearly flouts Articles 2&3 which provide for the establishment of new states, alteration of boundaries, and most importantly referring to the state legislature to express its views. When a new State of Telangana was created in 2014, the view of the AP legislature was taken.

Incidentally, the Constitution does not envisage any provision to convert a state into UT. BJP’s contention is that since J&K was under Governor’s rule, the consent of the Governor is a surrogate concurrence of the J&K legislature. Such a viewpoint is ludicrous & must be set aside.

Finally, CJI Chandrachud must revisit their judgment of striking down the NJAC Act in 2015, as offending the basic structure principle and holding on to the collegium structure to select High Court & Supreme Court Judges. It was Justice Jasti Chelameswar who gave a powerful dissenting judgment where he observed that transparency is a vital factor in constitutional governance which the opaque collegium system lacks.

Besides, the assumption of the primacy of the judiciary in the appointment of judges is empirically flawed. To hold that government should be totally excluded from the process of appointing judges is a doctrinal heresy. It offends the principle of separation of powers, which is a basic feature of the Constitution.

One hopes that CJI Chandrachud, instead of taking an ostrich-like approach to perpetuate the collegium system, may like to consider the recommendation of NCWRC under Justice Venkatachaliah which suggested a National Judicial Commission, where CJI & two judges, Law Minister & a person nominated by the President are members. The Judiciary would, therefore, have a majority voice in selection of judges.

Never in the history of India, have the citizens confronted with such a unipolar idea of India, cultural homogenization by a majoritarian party, throwing into the dustbin ideas like celebrating multiculturality, fostering brotherhood, eschewing obscurantism, and promoting a secular ethos.

It is therefore of utmost importance that judges to the High Court & Supreme Court, who will adjudicate challenges to constitutional violation by the state are chosen on the basis of merit and not judicial nepotism.

Shakespeare wrote: Cometh the hour, Cometh the Man. CJI’s moment of reckoning and his litmus test of displaying the courage of conviction will be tested & keenly watched. As Fall Nariman writes in his eminently readable autobiography Before Memory Fades:’ It is not enough that the judges are independent of the executive.

They must be seen to noble quality of mind & heart and above all courage.’ Mr Upendra Buxi, the eminent jurist had observed after the Keshavanda Bharati Case that the ‘Supreme Court has now become the Supreme Court of Indians’. CJI Chandrachud has the potential, intellect & fearlessness to invoke such optimism .

Prof Misra teaches Constitutional Law

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