The 50th CJI Dhananjaya Chandrachud has less than one year to leave office on November 11, 2024, when he turns 65 years of age. Arguably the most liberal and articulate chief justice, CJI Chandrachud has stood firmly behind the putative judges whom he iterated in public for judgeship a second time — after the Modi government opposed their elevation. The then law minister, Kiren Rijiju, was shunted to a less high-profile ministry after his intemperate warnings to the judiciary not to overstep the Lakshman Rekha which he drew for the Modi government.
One visible example of CJI Chandrachud’s refusal to be cowed was the elevation of securities law expert, Somasekhar Sundaresan, as a judge of the Bombay High Court. Sundaresan lost his seniority because the Rijiju ministry had blocked his elevation on the specious ground that he had aired his views on social media on sub-judice matters. CJI Chandrachud rightly explained that Sundaresan was exercising his right to free speech which did not detract from his competence and integrity.
In 2008, Ashutosh Kumbhakoni resigned six months after he was sworn-in as a judge because then President Pratibha Patil ignored his letter seeking restoration of his seniority above judges who were elevated from the sessions court and were junior to him. Kumbhakoni was made the advocate general of Maharashtra in 2017. He resigned one day after Uddhav Thackeray did so and was replaced by senior advocate Birendra Saraf who is the son of the late Justice BP Saraf of the Bombay High Court. CJI Chandrachud who practiced law in Mumbai will know all the secrets of his parent high court which he will never divulge, as he is a suave diplomat.
Justice Sundaresan apart, the Modi government has successfully thwarted senior advocate Saurabh Kirpal of the Delhi court and John Sathyan of the Madras High Court from being sworn in as judges of their respective high courts. This is why we must accept the so-called independence of the judiciary is chimerical because the government has the last word on who will or who will not become a judge. And outspoken judges like CJI Chandrachud can do precious little about it.
Another sensitive issue is the revival of the Citizenship Amendment Act (CAA) by home minister Amit Shah in West Bengal. He said it’s time has come and no power on earth can stop it. Under the CAA, non-Muslim minorities from Afghanistan, Pakistan, and Bangladesh who entered India on or before December 31, 2014, can seek fast-track Indian citizenship linking citizenship with religion, thereby flouting the axiom of secularism proclaimed in the preamble which is a basic feature of our Constitution.
A certain news channel is notorious for peddling this nationalism line declaring that courts had no power to strike down the CAA which was passed by “Parliament which is supreme”. CJI Chandrachud’s explanation that the executive, legislature, and judiciary derive their powers from the Constitution, which alone is supreme, has been ignored.
The Supreme Court adjourned a clutch of Special Leave Petitions challenging the Citizenship Amendment Act, 2019 to December 6, 2022. The matter was heard by a bench comprising the then Chief Justice Uday Umesh Lalit, Justices Ravindra Bhat and Bela M Trivedi, of whom the first two judges have retired. The bench decided to treat the petition filed by the Indian Union Muslim League as the lead matter. Despite the so-called independence of the judiciary, no two CJIs or their brother judges think alike. This is proven by the fact that the 48th CJI N.V. Ramana did not list Constitution bench matters while his successor, CJI U.U. Lalit listed 25 matters for disposal of which not a single bench comprised of seven or nine judges which hear momentous cases.
This is why the government wants a say in the appointment of judges because by delaying the swearing-in of judges like Somasekhar Sundaresan, they are furtively deciding who will become future chief justices. Chief justices select future judges and are the masters of the roster so that they can pack the bench with conformist judges. Just as the late CJI AN Ray set up a bench to review the Kesavananda Bharati case but announced at the end the bench had been dissolved when he realised he was in a minority of one against the bench which he himself had set up.
Of the eight future CJIs who will preside over the destiny of this country, Sanjiv Khanna and Bhushan Gavai will each have six months in office. Justice Gavai wrote the verdict upholding the Modi government’s demonetisation scheme and is a conformist judge. Justice Surya Kant will become the 53rd CJI in November 2025. He wrote the one-rank-one pension scheme judgment. He was also on the five-judge bench which held that the government is not responsible for statements made by public officials which could be construed as leaning in favour of the government.
The 54th CJI Bangalore V Nagarathna will hold office for just 36 days. She wrote a dissenting judgment in the demonetisation scheme but will not make any impact due to her short tenure. The 55th CJI PS Narasimha will be the third CJI after SM Sikri and UU Lalit to be directly elevated from the bar to the bench. He was part of the bench that declared the Maharashtra governor’s call for a floor test was illegal.
The last CJI-in-waiting is KV Viswanathan who will be sworn in in August 2030. He will be the fourth CJI to be directly recruited from the bar to the bench which may be construed as a demerit because such judges do not have the experience of being chief justices of other high courts with the consequent balancing of judicial and administrative work.
The Supreme Court has 79,361 pending cases with 4,915 being instituted in just one month as against 4,466 cases being disposed of during the same period. Fresh cases being filed outnumber the disposal rate. Make no mistake about that.
And still, as the clock ticks ominously for the 50th CJI to demit office, lawyers believe “Danny Boy” as he was known in Mumbai is arguably the most liberal and articulate judge equipped with both intelligence and integrity to solve the judiciary’s problems.
Olav Albuquerque holds a PhD in law and is a senior journalist and advocate at the Bombay High Court.
