NEW DELHI: Marking out hate speech as a cause for concern, Justice D Y Chandrachud said its impact was multi-fold with the rise of social media.
“Hurtful comments have far-reaching consequences on the psyche and emotional well-being of people,” he said while warning that curbs on hate speech must not have the effect of “chilling free speech”.
Looking back at his eight-and-a-half years in the Supreme Court as a judge, the last two years as CJI, Justice Chandrachud told TOI in an exclusive interview he believed he had “left the system better than I found it”, pointing to his verdicts on disability rights, right to information, and economic federalism, besides the equal opportunity doctrine in the context of sex and caste discrimination.
Asked if reservations should continue for perpetuity, the outgoing CJI said it could not be denied that quota as a means of affirmative action had promoted substantive equality. “That is a model of equality that is tried and tested, and has worked in India,” he added.
Justice Chandrachud said he did not agree with the perception that a judge’s work involved an element of ‘service’. “A judge, while discharging her functions, is not doing any service. Judges are doing a job just like everybody else. They are two different issues and must not be mixed,” he said, adding that a judge must be paid commensurate with the work output.
Many lawyers refer to Justice Dhananjaya Yeshwant Chandrachud as the ‘Rockstar’ of judiciary. After a stellar 25-year judicial career, eight of which were in the Supreme Court, the curtains came down on Sunday. He spoke on a range of subjects — from democracy, hate speech, reservation, executive-judiciary relations to judges’ salaries.
Justice DY Chandrachud and (centre) wife Kalpana Das with foster care daughters Priyanka and Mahi. (Back row) Son Abhinav, grandchildren Uday and Radha, and daughter-in-law Aparna
Excerpts from the interview:
How would you describe your eight-and-a-half years in SC as a judge, especially the last two years as CJI?
I don’t think I can speak of my experience as a judge of the Supreme Court and the Chief Justice of India without a reference to 13 years as a judge of Bombay High Court and three years as Chief Justice of Allahabad High Court. Much of what I have learnt and, particularly, my judicial philosophy is shaped by my experiences from then. In Bombay HC, I learnt the ropes of judging from many, especially judicial craftsmanship by observing Justices Sujata V Manohar and P D Desai. As CJ of Allahabad HC, I learnt about judicial administration.
Allahabad HC has the highest sanctioned strength of 160 judges and heading the court was a challenge. It taught me many lessons on leadership and judicial administration. As the Chief Justice, you are not a ‘leader’ in the traditional sense. You are the first among equals. Your brother and sister judges could be older and more experienced in the profession.
Thus, a very delicate balance has to be drawn. I learnt much about human emotions and relationships as the HC CJ. These experiences guided my functions, both administrative and judicial, at the Supreme Court. The switch from being the HC CJ to a puisne judge at the Supreme Court is in a lot of ways humbling. You are back to focusing solely on the judicial side of things. Looking back, I have had a very fulfilling journey.
I had the opportunity to lay down the jurisprudence on disability rights, expanded the equal opportunity doctrine in the context of sex and caste discrimination, limited the scope of sealed cover jurisprudence to exceptional situations, gave teeth to the right to information, and crafted a nuanced understandings of economic federalism while deciding Centre-State disputes in the mineral and liquor cases. I am retiring with a sense of satisfaction.
I have critically engaged in areas of law and developed jurisprudential frameworks to limit the ad-hoc model of judicial decision making. As the Chief Justice of India, I believe that I have left the system better than I found it.
Is Indian democracy in danger? There have been attempts to create a phobia about democracy being in danger in India. Your take on the role of the judiciary on this issue.
There are no uniform components of democracy that every country must tick to ensure that it is functioning ‘democratically’. The premise of democratic functioning in India, where we are faced with our own unique problems, is different from the premise of democracy in other countries.
In India, we don’t subscribe to a merely ‘political’ understanding of democracy. Issues relating to elections or representation such as the right to vote or gerrymandering are a part of democratic governance.
We also believe in social democracy, that is, the existence of certain minimum social factors such as absence of discrimination and ensuring substantive equality of opportunity. What is the role of institutions in democracy? Institutions are created and conferred with power to ensure that (i) the premises of democracy are not abrogated and (ii) the values that democratic foundations rest upon are fostered. I would term courts as ‘specially abled’ democratic institutions whose function itself is to ensure that the other democratic institutions are not captured and are able to freely exercise their duties.
Viewed in that manner, the courts are conferred with powers to prevent democratic decay. This could include the role of courts to challenges which alter the rules of elections and the process of appointing persons to democratic institutions and their independence. But it would equally include the role of courts in a challenge against a reservation policy or even a challenge to the recruitment process to the post of a teacher or the challenge to arrest or an application requesting bail.
Each of these issues is connected to the constitutional idea of democracy. So, it cannot be denied that courts have a very important role to play in the sustenance of Indian democracy. But it must be equally recognised that the length and breadth of Indian democracy and its meaning cannot be limited to certain ‘big’ matters.
Is hate speech a cause for concern? What should India do to curb it?
I am an ardent believer and proponent of the freedom of speech and expression. Constitutional freedom is subject to reasonable restrictions. I also believe that the restrictions must not render the right a mere paper right. Hate speech is a cause for concern. Its impact is multi-fold now with the rise of social media.
There are an increasing number of keyboard warriors who say things in exercise of their freedom of speech to just gain traction and to stay relevant in public. Hurtful comments have far-reaching consequences on the psyche and emotional well-being of people. What should India do to curb it? The method opted by the state must be covered within the fold of the restrictions. It must not have the effect of chilling free speech.
A balance must be drawn to ensure that the means adopted are proportionate to the infringement of the right.
Reservations for SCs and STs were to last for 10 years. But backwardness appears to be an incurable defect in Indian society with political parties vying with each other for an increase in quota beyond the 50% limit set by the SC in 1992 in the Indra Sawhney case. Should reservations be eternal?
The statement that reservations for SCs and STs were to last for 10 years is factually inaccurate. Article 334 of the Constitution states that reservations for SCs and STs in the House of the People and the legislative assemblies of states must cease to exist in 10 years. This provision was amended multiple times that it now reads that it shall cease to exist in 80 years.
Thus, the time limit was prescribed only for reservations in the legislature and not for reservations in educational institutions and services. From a constitutional perspective, the amendments to the time limit are unconstitutional only if the original and unamended provision has attained the character of a basic feature.
The concept of equality of opportunity is eternal. That is one of the basic features of the Constitution. Reservation is a means to ensure equality of opportunity. You cannot deny that reservation as a means of affirmative action promoted substantive equality. That is a model of equality that is tried and tested, and has worked in India.
Over the past decade, a degree of transparency has been infused into selection of persons by the SC collegium for appointment as constitutional court judges. Would it have been better if the SC had allowed the NJAC model to operate for a few years, maybe with appropriate tweaking?
The question is based on a surmise. I am not in a position to answer whether the NJAC model of appointment would have been ‘better’ than the collegium system. The Supreme Court decided the ‘constitutional validity’ of the NJAC model.
The court does not sit in judgment on whether a model of appointment is better than the other but only on whether it is constitutionally sound. A constitution bench of the Supreme Court held that the NJAC model of appointment was not constitutionally sound.
Within the system of appointment that is in place, I have infused a degree of transparency. There are parameters based on which we recommend a judge. We consider the factors of (i) merit, performance and integrity; (ii) diversity and inclusion; and (iii) representation.
Should India follow the US mechanism for selection of judges to the SC? Should the retirement age of HC and SC judges be raised?
I don’t have an appropriate answer for whether the retirement age for judges must be raised. There are two perspectives from which this question can be viewed. If you ask me whether our brain becomes ‘slower’ at the ages of 62 and 65, and whether we can no longer discharge the functions of a judge, I would say no. We have legal luminaries in the bar who are at their prime even at the ages of 70 and 75.
There is another perspective to this. The prescription of a retirement age is to prevent the concentration of power and to ensure that the opportunity is available to many from the younger population. The aim must be to balance experience with adaptability.
After implementation of the Second National Judicial Pay Commission, the salaries of trial court judges have increased substantially. Should the salaries of HC and SC judges, who are paid a pittance compared to their income as advocates, be increased to give them a fair compensation for their tedious work and to attract more talent?
I am a firm believer in payment of salaries commensurate with work. I also believe that any service must provide competitive salaries to attract talent. For example, when I took over as the Chief Justice of India, the salary of judicial law clerks was Rs 65,000. It is now Rs 80,000 for the first year of clerkship and Rs 90,000 from the second year.
Clerkship in India is now a highly competitive and sought after job, which attracts talent. Competitive salaries also ensure that the job presents an opportunity to law graduates across the board, irrespective of the social and economic status. The same principle applies to judgeship as well. I know more than one candidate who has denied taking up judgeship because of the lack of financial prospects.
It is a particularly difficult choice to make when you are offered judgeship in the high court. In many cases, candidates have to give up their lucrative practice which pays them 10x to 100x the salary they would be offered as a judge. There is often a perception that floats around. That as a judge, there is an element of ‘service’ involved and that economic benefits should be immaterial. I do not subscribe to this school of thought.
A judge, while discharging her functions, is not doing any service. The minute that is the perception, then any decision of the judge will be viewed not as a discharge of her constitutional function but as an outcome of ‘graciousness’. A judge must be paid commensurate with the work output. While they are working, they are doing a job just like everybody else. The manner in which they discharge their job must conform to the principles prescribed by the Constitution. They are two different issues and must not be mixed.
As CJI, the bench you headed gave many landmark judgments involving sensitive social, economic and governance issues. Were you ever approached by the executive seeking a favourable order?
No, I have never been approached by the executive seeking a favourable order.
Have PILs, an instrument created on the lines of class action suits to address problems faced by vulnerable sections of society, the marginalised and poor, been hijacked by a few? Has it become an industry in itself?
I think it would amount to diminishing the impact and the benefits of PILs to say that it has been hijacked by a few. The core principle of public interest litigation is that it dilutes the traditional rule of locus standi on who can raise an issue before the court.
A person who is not directly affected by an action (or inaction) may initiate a public interest litigation if it affects the public. It cannot be denied that courts have been more ‘activist’ in the PIL pleas. It can also not be denied that these petitions have contributed to social progress in India.
The judgment of the Supreme Court in Vishaka is a prime example, where it developed the right against sexual harassment and framed guidelines to fill the legislative vacuum. Another very recent example is the judgment of the Supreme Court in Sukanya Shantha, where the court dealt with caste discrimination in prisons. The petitioner in the case was a journalist.
There are numerous frivolous petitions which are instituted because of the dilution of locus standi. There is no denying that it burdens the already heavy docket. I remember that there was a PIL filed claiming that Charles Darwin was wrong in his evolution theory and Albert Einstein erred in deducing E=mc2.
There was another petition with the grievance that the Chief Justice of Bombay High Court did not say ‘I’ while taking oath. So, there are good and bad cases. A few lawyers have made their name and have become popular through PILs but that is really a natural consequence of diluting the principle of locus standi. It is up to the court (and individual benches) to take a firm stand against it.