Professor Satya Narayan Misra in Bhubaneswar, October 22, 2024: Speaking at a function recently Chief Justice of India (CJI) D Y Chandrachud worried about the legacy he will leave behind for future generations of judges and legal professionals. The expectation is natural as he had the right pedigree, impeccable judicial education, gift of the pen and the gab; and longish tenure of two years as compared to his four predecessors who appeared to have walked away into an inglorious sunset with their sinecures and post retiral benefits like a berth in Rajya Sabha (CJI Gogoi).

He made the right noise on individual liberty, freedom of speech, religious pluralism, constitutional safeguards, and free voice to the media. He was applauded for calling dissent the safety valve of democracy. This was reminiscent of Justice HR Khanna’s famous dissent in the ADM Jabalpur Case (1976) when he quoted Evan Hughes who wrote: “A dissent is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may correct the error in to which the dissenting judge believes the court to have been betrayed”.

Justice Khanna braved a possible supersession by Mrs. Indira Gandhi, the PM, during the infamous emergency to rule that “detention without trial is an anathema to all those who love personal liberty”. Justice Khanna was superseded as CJI as he showed the courage of conviction, and the New York Times wrote, “Someone will erect a monument to HR Khanna of the Supreme Court”.

Within the sanitized confines of the courtroom and confronted with the specter of a majoritarian government CJI DY Chandrachud seemed to lack the courage to hold the executive accountable, prevaricated in several cases, and did not push the envelope of several burning cases to its finality; as in the Electronic Bond Scheme (EBS), restoring legitimacy to government brought down by illegal means as in Maharashtra and restore faith & credibility in the electoral process.

As Alexander Pope wrote: He was willing to wound but afraid to strike. The most distressing part is that under his watch, thousands of social activists, dissenters, and academics continue to languish in jail without a trial or even bail. The accused in the Bhima Koregaon Case are being released on bail in installments as if justice is to be dispensed in droplets.

Some of them have died like Stan Swami at 80 as a result of inhuman treatment meted out to them while in custody, the most recent being Prof GN Saibaba, a man with 90% disability who was kept in jail for almost a decade without being convicted of any offense. Can any historian forget the Ram Janam Bhoomi order, in which faith of the major community was made the basis of a judgment, not legal evidence? The SEBI and Pegasus enquiry was never followed up to their logical conclusion and the can of worms opened with EBS judgment was hastily shut again!

CJI D Y Chandrachud has been a judge of the Supreme Court since 2016 and has been part of 220 judgments so far. He has several key rulings to his credit, like striking down the EBS scheme as opaque, as the scheme infringed upon the right to information which is vital for holding free and fair elections. He was part of the unanimous judgment that ruled that the right to privacy is an inalienable part of the right to life. In the Puttaswamy judgment (2017) he overruled the majority judgment of ADM Jabalpur Case (1976) that the right to life remains suspended during the imposition of emergency. In the process, he turned his father’s judgment in 1976 upside down.

He repeated it in Josephine Case (2017) when he struck down S 497 of IPC which considered adultery as a criminal offense, which the father had upheld. He wrote: “The Court is not taking a paternalistic role but restating that any legislation that results in the denial of such constitutional equality to women cannot pass the test of constitutionality.” In the Babita Puniya Case (2020) he called upon the Army to consider all women appointed in the army in the Short Service Commission for Permanent Commission on an equal basis as with their male counterparts. He was complimented internationally for bringing to the fore the doctrine of systematic and indirect discrimination as a relevant framework for assessing claims of discrimination and structuring redressals.

Fali Nariman, the distinguished jurist writes in his widely acclaimed autobiography “Before Memory Fades”: “The judiciary is like oxygen in the air. It is not enough for the judiciary to be independent of the executive. They must be seen to have the noble quality of mind, heart, and above all courage”.

On 28th January 1950, the Supreme Court held its first sitting in the Court Chamber of the Parliament. Mr MC Setalvad, the first Attorney General said: Like all human institutions, the Supreme Court, we hope, will earn reverence through truth. The refrain for the judges has been to ‘evince courage and to pursue truth fearlessly’. Since its inception, the Indian Supreme Court has had 339 judges, including 50 CJIs. In Fali Nariman’s assessment, CJI Subb aRao, CJI Hidayatullah, Justice Krishna Iyer, and Justice HR Khanna seem to have left behind great legacies.

CJI DY Chandrachud is a scholar, a decent human being, and a compassionate parent, with a penetrative legal mind; He could have done much to bring the country out of the morass it is being shoved into by an absolutist government, hell-bent on fomenting communal fundamentalism and fostering cultural homogenization. The tragedy is not that he has failed to do so, but he chose not to.

Unlike Justice Khanna, who leaves behind a huge legacy by showing courage and conviction to defend life and liberty and standing firm against an absolutist government, Justice Chandrachud has shown prevarication, and not pushed major issues to finality. On Constitution Day he quoted Martin Luther King Jr who said “The arc of the moral universe is long, but it bends towards justice. “Sadly, he did not do enough to bend constitutional morality towards full justice and ‘build the bridge between reality and constitutional goals.’