Justice D Y Chandrachud

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2018: The value of dissent

Dhananjay Mahapatra, In 6 mths, Chandrachud undergoes spectacular image makeover, October 1, 2018: The Times of India

There are four worlds in Indian democracy — the ‘secular’ leftists, the ‘pseudo-secular’ centrists, the right wing, and the fourth comprising a vast multitude of commoners mired in their individual small worlds which grind them mercilessly on a daily basis.

The ‘secular’ leftists, and to a lesser extent the ‘pseudosecular’ centrists, have been flag bearers of free speech, fundamental rights and of course, PILs. But when faced with internal dissent, both have displayed surprisingly sensitive skins. The right wing brazenly displays signs of authoritarianism, branding ‘leftists’ and ‘centrists’ as ‘dissidents’.

The value of dissent is decided by the leftists and centrists, both of whom count in their ranks a few ‘intellectually superior’ citizens in every professional sphere. These intellectuals, in turn, decide when dissent is good for the country and its polity and when it needs to be derided.

In the last week of September, Justice D Y Chandrachud was hailed by the ‘intellectuals’ as the judge of the century for his lucidly written dissenting judgments — first in quashing Aadhaar by terming it as an instrument to turn India into a surveillance state; second, in ordering setting up of a Supreme Court monitored SIT to probe the case related to arrest of five rights activists.

Justice Chandrachud coined two catchy phrases – “dissent is the safety vale in a democracy. The pressure cooker will burst if you muzzle it” and “liberty cannot be sacrificed at the altar of conjectures (of police or authorities)”. The ‘intellectuals’ from the first two worlds lapped these up, much to the consternation of the ‘third’ world. Though the rights activists and their friends were hurt by the majority judgment asking them to face the process of law like commoners, they latched on to the face-saver provided by Justice Chandrachud. Commoners inhabiting the ‘fourth’ world would never have got such relief if one of them was arrested and his friends had moved the SC or any high court seeking relief similar.

Citizens of the ‘fourth’ world face the rough hand of both police and Naxals. The barrel of a gun, be it of police or Naxals, stares at them regularly. They risk betraying police to help Naxals because police mercifully have some fear of the law’s long hands catching them at some point of time. Not the Naxals, who live and die by the gun, or surrender and get a better life than that of commoners in the hinterland.

Rewind to February-March. A hue and cry was raised more than three years after the alleged suspicious death of judicial officer B H Loya, who was the trial judge in the Sohrabuddin fake encounter case in which BJP leader Amit Shah was an accused. The very same lawyers, who are now hailing Justice Chandrachud’s dissent in Aadhaar and arrest of activists, were passionately seeking an SIT probe headed by a retired SC judge into Loya’s death till March 16, when a bench of CJI Dipak Misra and Justices A M Khanwilkar and Chandrachud reserved order on the petitions.

On April 19, Justice Chandrachud wrote the unanimous judgment for the bench and turned villain because he bluntly rejected the fervent pleas of these lawyers, who were rooting for an SIT probe, and made a judicial finding that Loya died a natural death.

The ‘first’ and ‘second’ world ‘intellectuals’ cried foul and lawyers involved with the case freely attributed motive to the Loya judgment in the SC corridors because the verdict did not go as they wanted.

They compared the Loya judgment with Emergency era’s infamous A D M Jabalpur verdict, which had the concurrence of Justice Chandrachud’s father, Justice Y V Chandrachud. On April 19, lawyers swiftly declared on TV channels that the Loya judgment heralded the darkest day in judiciary. On that day, even Justice Chandrachud would not have imagined that he would undergo an image makeover in six months to bring sunshine into the judiciary enveloped by darkness.

Justice Chandrachud made the ‘cardinal’ mistake of naming lawyers Dushyant Dave, Indira Jaising, V Giri and Prashant Bhushan in the Loya judgment and narrated the ‘outlandish’ allegations hurled by them at judicial officers, HC judges and even SC judges in an attempt to secure an SIT probe.

He had said, “What is worse is the manner in which wholly unfounded aspersions have been cast on the judges of the Bombay high court following a decision which has been taken in the judicial capacity. This constitutes a serious attempt to scandalise the court and obstruct the course of justice.”

He said though the SC had crafted PILs to serve as tools to provide commoners with access to justice, “yet, over time, it has been realised that this jurisdiction is capable of being and has been brazenly misutilised by persons with a personal agenda. At one end of that spectrum are those cases where public interest petitions are motivated by a desire to seek publicity”.

“At the other end of the spectrum are petitions which have been instituted at the behest of business or political rivals to settle scores behind the facade of a public interest litigation. The true face of the litigant behind the facade is seldom unravelled,” he had said.

Early into his career as a Supreme Court judge, the experience of getting damned and then hailed will serve Justice Chandrachud well in the coming years till he retires as Chief Justice of India in November 2024.

It will help him come to terms with the cyclical pain and thrill of getting pulled down and crowned. It will make him understand the fluidity of molten lava, in the shape of opinions of ‘intellectuals’ and ‘activists’, from volcanic PILs.

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