On the eve of being sworn in as the 50th Chief Justice of India,speaks to Ananthakrishnan G, at his residence in New Delhi. Excerpts:
Your predecessor had a tenure of 74 days; you have almost two years. What are your priorities?
My first priority is to lead by example…. I have always believed, even as Chief Justice of Allahabad High Court, (that) a Chief Justice above all cannot, does not, forsake judicial work. So, first and foremost, you have to concentrate on your own function as a judge. Having said that, becoming the Chief Justice of the High Court, initially, and now the Chief Justice of India involves enormous additional administrative responsibility.
I have always said this before that our judicial system is based on the colonial model where individual citizens have to seek out justice. My mission is to make our system more simple, more transparent, more efficient so that the interface of common citizens with the judiciary becomes easy, simple and transparent…
Second, there is, of course, a call of conscience and the call of duty because I am conscious of the fact that the judiciary is a tremendous source of faith for common citizens. We have to ensure that this faith, developed over the last several decades of functioning of the judiciary in post-Independence India, is sustained and nurtured in terms of our ability to respond to the real grievances of people.
Sometimes, the grievances which we come across as judges are not grievances which even the press would write about. These are, essentially, grievances about day-to-day lives of common citizens which affect them very deeply. This appeal to conscience of the demands of common citizens needs to be understood and we have to be an organ of the state and organ of the nation, which looks at citizens not with a patronising attitude but with a sense of empathy, with a sense of commitment, with a sense of compassion.
When I overruled my father’s judgment…when I completed writing that part of Puttaswamy, where I said that I am overruling ADM Jabalpur, I remember I told my secretary that we are stopping work for the day today. I came inside and said it’s time to go back and introspect. I will be a hypocrite if I didn’t tell you that… As judges, we are trained to control our emotions. That comes from years and years of training. You have to do what is right, irrespective of who is before you, who it’s affecting and in this case whose judgment you are overturning.
There are some key areas which need to be attended to.
First and foremost, the unfilled posts in judiciary. The need to fill up all posts in the judiciary, beginning with the district judiciary, high courts and, ultimately, the Supreme Court.
Second, we need to bring in more diversity in judiciary. The face of the judiciary which we see today is the product of the state of the legal profession three or four decades ago. It’s very simple sometimes to say we need a very diverse Supreme Court or high courts. When we say that, we also have to look at the feeding pool, which is the source from which we draw persons to the judiciary. Today’s High Court judges pretty much reflect the status of the legal profession, say 30 years ago when they joined the Bar.
Likewise, the state of the Supreme Court today reflects the position of the legal profession some 40 years ago when most of us joined the Bar. So what we need to do is democratise the legal profession where access to the profession is made available to a broad cross-section of society, whether it’s in terms of the marginalised communities, in terms of gender, in terms of different regions. Because if we set that framework today, then we will build that for the future. Somebody has to take those steps today. I think very little attention is being given to that facet of the judiciary.
Third, within our own processes and systems, whether it’s in the appointment of judges or in terms of the way our Registry is functioning in our courts, we have to become more objective, we have to lay down clear parameters on the basis of which we act, on the basis of which we list cases. Ensure that our older cases get priority for listing because they reflect the concerns of common citizens.
What about appointment of judges?
In terms of the appointment process, we are governed by the Collegium system which has been laid down by the judgements of the Supreme Court in the Judges case. And while we work our way within the fold of that system, there are several improvements which we can bring about because no institution in any constitutional democracy can lay a claim to being perfect. When there is a critique of the way the Collegium functions, we have to look at it in a positive light. I don’t think this reflects the criticism of the judiciary as a whole as such. But, really, we have to be responsive to what voices we hear both within and outside the judiciary and then try and improve the system, bring in more objective parameters, assess how we should be functioning better or taking decisions better, and take things forward.
Recently, the Union Law Minister called the Collegium system opaque.
I do believe that, as judges, what we do in terms of our written word in our judgments and in our work as judges is what should count. So the best way to deal with criticism is to work in a manner which is more accommodating of diverse critiques of the working of the Collegium. Some of the criticism may not be entirely justified. Some of the criticism may warrant some look at how better we can foster our procedures, which is something we will do. But all change has to be taking place in an incremental manner so as to promote stability, so as to promote certainty and better outcomes for everybody.
When you speak about the opaqueness of the system, let’s analyse it further. On the one hand, there is a public interest in knowing how judges are appointed…Given the importance of our Constitutional and other role as the final Court of appeal as well, I think citizens do have a legitimate concern in regard to the manner in which appointments take place. So there can be no gainsaying the fact that citizens are entitled to know what are the parameters which apply. Now we have the Memorandum of Procedure which outlines the manner in which appointments are to take place through the Collegium within the high courts or the Supreme Court. So while there is a public interest in understanding the basis on which judicial appointments are made, there is equally a public interest in ensuring the credibility of the system as well.
When we make appointments from, say, the Bar to high courts, we have to also ensure that while we take into account the first element of public interest, we also need to preserve the privacy of the people under consideration. Otherwise, if we start exposing every little detail of our discussions, of our deliberations, (for) public scrutiny, the net result would be that many good people will just not be interested in seeking judgeship or accepting judgeship when the offer is made.
The intersectionality which I spoke about is not imported from some foreign jurisdiction. I spoke about it in the context of, say, a sexual assault on a blind girl belonging to a Scheduled Caste…(Its) experiential impact and its impact on society is completely different. An added feature is that the woman who was subjected to sexual assault is not only from the Bahujan community, but she was also blind, that is, she belongs to a disabled segment of our citizens… This is the Indian intersectionality I spoke about purely in the Indian context.
Second, when you appoint judges from the High Court to the Supreme Court, we have to realise that they are all sitting judges of the High Court…they are functioning Chief Justices. Therefore, the nature of the disclosure that you make in relation to either the judgments of a judge, or in relation to the functioning of a judge, must also balance the need to ensure that the legitimacy in the functioning Chief Justices, as judges of the High Court, is not affected.
Because, ultimately, appointment to the Supreme Court is not only on the basis of seniority. It’s an evaluation of merits. We look at seniority, we look at integrity, we look at the need for regional representation, the need for diversity in terms of representation of the marginalised segments of society, gender diversity, representation to the minorities.
In this process of selection, obviously someone is going to be chosen and someone is not going to be chosen. And when you have positions in the Supreme Court which are fewer than the people who are in the zone of consideration, you have to make a choice. When you make a choice, so long as the parameters on the basis of which we make the choice are objective, I think that should satisfy the need to build confidence in the nature of the process of appointments.
What is your view on criticism of judges on social media?
Social media has changed the universe in which we live today…it reaches out to every court on a real-time basis. Every word which you say, every action which you take is put out to the public and digested sometimes in well-informed manners, sometimes in a mistaken manner. But I don’t think this is something which we should obstruct or should be worried about. I think we just need to readapt ourselves, re-engineer ourselves.
Sometimes, it does cause a challenge to us judges…much of what takes place in a court is open dialogue between the Bar and the Bench. When I was a lawyer, I would be worried if the judges were not responding to my arguments because I wouldn’t know what is going on in their minds… Much of the dialogue is not aimed at indicating the conclusion of the judge but for eliciting the truth… There are judges who play the devil’s advocate, so that the moment a lawyer gets up, the judge would tell what’s wrong with their case. Then you have judges who would stretch the arguments of a lawyer to its logical conclusion and say what does that argument represent. Then you have judges in between… Now the problem really is whatever is said in the court is sometimes conveyed by the social media as indicating the mind of the judge or, worse, the conclusion of the judge. When the purveyors of the news in social media are not aware of this nature of the functioning of the court, that poses a problem.
…I think it’s time for judges also to reorient themselves in the times of social media. We haven’t trained ourselves, we haven’t trained our judges how to adapt to an age where social media is omnipresent. None of us, when we were lawyers, lived in the age of the Internet.
The Internet was coming in the late-1990s…but certainly not the social media as we see it today. Now increasingly we are doing live-streaming of cases. Live-streaming will place new demands on our judges. So it’s important that we also train ourselves.
Your judgments stress the dignity of the individual and place the individual at the centre of things. Some say too much stress on individualism can weaken inter-generational and societal bonds. Your views on intersectionality, critical race theory, in the context of caste system have come in for criticism from some quarters which say it’s “woke” language.
I am committed to implementing and abiding by the Constitution… When I emphasise individual dignity, I equally emphasise social cohesion because as judges of the highest court, our judgements must also speak to the need to preserve a tranquil and stable social fabric. Because that is ultimately what sustains a nation, binds it together…
This intersectionality which I spoke about is not imported from some foreign jurisdiction. I spoke about it in the context of, say, a sexual assault on a blind girl belonging to a Scheduled Caste. So when I said that when a woman is subjected to an assault, it’s very different from the experiential value of that assault or the experiential impact of that assault is very different from when a man is subjected to an assault even in a heinous crime. When that woman, who is subjected to, say, an assault, belongs to a Scheduled Caste, the experiential impact and its impact on society is completely different.
An added feature is that the woman who was subjected to sexual assault is not only from the Bahujan community, but she was also blind, that is, she belongs to a disabled segment of our citizens. Then the impact on the social fabric is very different. This is the Indian intersectionality I spoke about purely in the Indian context.
Your father, the late Justice Y V Chandrachud, was one of the authors of the ADM Jabalpur (abrogating the right to life, 1976) case which has been widely criticised. You went on to overrule it in the Puttaswamy case. How did you take to it, growing up and becoming a lawyer?
Every generation of judges functions in the social context, in the Constitutional context of the time. The Constitution itself is an evolving document. My father delivered judgments in a host of other cases which he believed in at that point of time… We have delivered several judgements which suit our context today… Fifty years down the line, the Constitution would have evolved further. New concepts would come into play.
So I don’t think any generation of judges can claim a sense of immutability, that what we lay down would be the law for an indefinite future. We decide for our society here and now, to the best of our ability. And when I overruled my father’s judgment, it happened to be my father’s judgment. But it was a judgment, after all.
Were you waiting for an opportunity to overrule it?
Not in the least…When I actually completed writing that part of Puttaswamy, where I said that I am overruling ADM Jabalpur, I remember I told my secretary that we are stopping work for the day today. I came inside and said it’s time to go back and introspect.
I will be a hypocrite if I didn’t tell you that. Obviously, there is a certain personal element as well when you know who has written the judgment. But having said that, you overrule it because it’s a judgment. It’s part of your functions, part of your constitutional duty… But, as judges, we are also trained to control our emotions. That comes from years and years of training. You have to do what is right, irrespective of who is before you, who it’s affecting and in this case whose judgment you are overturning.
What does decolonising the judiciary mean to you? Where should the change start?
The change has already begun… Can we say, for instance, that the face of the Indian judiciary today is the same as the face of the Indian judiciary 70 years ago? Not at all. We have Indianised our laws. We have Indianised our judicial system. When we say decolonisation or post-colonial society, what we really need to do is that you need to make the law and justice reach out to citizens.
Traditionally, if you look at the architecture of our colonial court buildings, it was intended to bring a sense of awe in citizens about the authority of power. That was part of colonial architecture because law was the means to govern, and perhaps even to oppress. Today we are talking of the law in a welfare state where the law is intended to facilitate people achieving a dignified life. So our effort to decolonise the Indian judiciary has already begun…silently, many, many years ago, in terms of the language which is allowed use in our courts… So we have our own home-grown system which has adapted, if not by design, at least by pressure of social circumstances. That process of decolonisation has substantially been underway.
Now we are sort of institutionalising it by ensuring that our procedures are more attuned to what we see in life outside society.
Decolonising also in the way we write our judgments. When I write judgments, I make a conscious effort to ensure that they are not couched in very formal legal language. When I write, I always presume that my reader is not going to be just a lawyer or a judge who is very learned in law but a common citizen who is not a law student or a lawyer. This also means that we write in much simpler language in a manner which common citizens can understand.