It may be a mere coincidence that Chief Justice Sanjiv Khanna succeeded Justice D.Y. Chandrachud바카라the son of Y.V. Chandrachud, who was also the Chief Justice바카라whereas the incumbent Chief Justice is the nephew of another celebrated Judge of the Supreme Court바카라Justice H.R. Khanna. But between them, the four offer fascinating variations of the most critical judicial asset바카라a sense of a tipping point, beyond which the republic바카라s very character would stand altered.
Besides being necessarily well-versed in constitutional jurisprudence, having the requisite sharp and keen mind and possessing impeccable moral character, a judge of the higher judiciary also needs to have the intellectual bandwidth to recognise the hinge moment바카라the moment when a call has to be made on whether to hasten or to prevent the unleashing of a new great danger in the social and political order. A Judge who does not have a sense of history makes a poor servant of justice.
First, the good call made by Justice H.R. Khanna in the most (in)famous case바카라the ADM Jabalpur (Habeas Corpus) case바카라during Indira Gandhi바카라s emergency. The question was whether during a national emergency, declared per Article 356, a citizen loses the protection of Article 21, which guarantees 바카라personal liberty and life.바카라 Justice Khanna was the sole dissenting voice against the other four judges in a five-judge bench. He was aware that his dissent would cost him. 바카라I would have to lose the office of the Chief Justice of India.바카라 And, lose he did.
Here was one judge who recognised the tipping point that was at stake바카라if the State is allowed to have the power to take away the life and liberty of a citizen and the citizen will have no recourse to a Habeas Corpus, the very constitutional commitment of a free society would stand abandoned. Justice Khanna refused to concede to the ruler(s) of the day this absolutist power, whereas the four others were content to prioritise technicalities over grand principles.
The contrasting histories of the Khannas and the Chandrachuds tell us about the elusiveness of the ideal judicial temperament.
Justice Khanna바카라s brother judge on the bench, Justice Y.V. Chandrachud, talked of 바카라the cobwebs of suspicion바카라 and cautioned judges against substituting their 바카라personal opinions바카라, and 바카라pre-dispositions바카라 with the assessment of the executive, which was in full possession of all the facts. One judge could have the judicial clarity and the moral courage to oppose the State; four others did not and history has not been kind to them. Soon after the emergency, Justice Chandrachud is reported to have said he wished 바카라that he had the courage to resign at that stage바카라바카라a 바카라belated but handsome, and sincerely agonised, apology.바카라
And Justice Y.V. Chandrachud, as CJI, was to drop the ball again. This time in the Shah Bano case. He needlessly, some even suggest provocatively, digressed from the question of law to hold forth on the desirability of a Uniform Civil Code. 바카라A common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies,바카라 he argued. He did not stop with a mere proposition but went on to say that because the legislature would not find the requisite 바카라political courage바카라 it was inevitable that 바카라the role of the reformer has to be assumed by the courts.바카라
In the context of the day, Chief Justice Y.V. Chandrachud바카라s protestation of a reformist zeal was seen by the entire swathe of Muslim public opinion as a unilateral undertaking, overriding the prevailing political consensus that the community was entitled to substantive consultation in the matter. Unthinkingly, a chief justice ended up instigating a tipping point in the polity. Feeling cornered, the Muslim community dug in its heels바카라the Hindu hard-liners바카라 day was made.
The sins of the fathers, we are warned, sometimes visit the sons. When D.Y. Chandrachud became the Chief Justice, he seemed to be deeply conscious of his legacy, and many hoped that he would want to roll back the State바카라s absolutist demands, emanating from a majoritarian agenda. Outside the court, he made noises, giving encouragement to those who thought: here was a son out to redeem his father바카라s name. He was to cause disappointment.
His moment of reckoning came in the Gyanvapi Mosque case. Allowing himself to be ensnared in the technicalities, he lent the apex court바카라s imprimatur on the communal mischief masquerading as an 바카라archaeological survey,바카라 being totally deaf to the sensitivities involved. He ended up instating a dangerous tipping point in the polity. Suddenly, the injunctions and constraints undertaken in the Places of Worship (Special Provision) Act of 1991 stood negated. It was only a matter of time before radicalised Hindu groups would demand 바카라surveys바카라 of this or that historical monument. His was a ruling for chaos, disorder and mobs.
As if that was not enough, he invited the Prime Minister to a puja ceremony at the Chief Justice바카라s official residence. A glaring misjudgement in the context of the day. All norms of judicial restraint and discipline stood wounded. It was not just a matter between a chief justice and a prime minister who is an incredibly adroit practitioner of the politics of polarisation. The puja jugalbandi sent a political message across the land, especially to the lower judiciary. The likes of Justice Shekhar Kumar Yadav felt empowered and emboldened.
It was left to his successor to redeem the judiciary바카라s fair name. Chief Justice Khanna바카라s order, reaffirming the 1991 freeze on disputes, instantly lowered the religious tensions across the board. Hotheads have been given time to cool down.
The contrasting histories of the Khannas and the Chandrachuds tell us about the elusiveness of the ideal judicial temperament, the requisite mix of rectitude and certitude, besides a broad appreciation of the historical forces at work in our society. In his autobiography, Neither Roses Nor Thorns, Justice H.R. Khanna writes about the agonising days when he allowed himself to be inducted as a law minister in the Charan Singh government. His ministerial innings lasted just three days before his conscience gnawed at him to disassociate himself from an arrangement of defectors.
What made his conscience prick was a call from L.K. Advani, who told Justice Khanna바카라the hero of the ADM Jabalpur case바카라that 바카라we feel that the star from whom we received inspiration has let us down.바카라 And, then, he also heard words of disapproval and disappointment from peers like Nani Palkhivala.
That was still the age of innocence and idealism. The judicial fraternity can no longer feel inspired by the political crowd or the Bar. The higher judiciary has to locate its own charter in the Constitution and there is no ambiguity바카라we are a secular democratic republic.
(Views expressed are personal)
Harish Khare is a Delhi-based senior journalist and public commentator
