Chief Justice Chandrachud, who has a Doctorate in Law from Harvard, wants to be remembered by generations of lawyers and judges as yet unborn for his mastery of the science of law and his ability to give a harmonious construction to Indian constitutional jurisprudence as he found it.
Thus an appraisal of his stint as CJI must be founded purely on the science of law. Gautam Bhatia takes a different view. He writes-
So did that of the Bangladeshi or Pakistani Chief Justice. The former was forced to resign by students while the Pakistani constitution has been amended to severely limit the power of the latter. The plain fact is, the Judiciary only wields power if Judges aren't being threatened with beating by riotous students or being stripped of power by the Legislature.
No. In a democracy we leave it up to our elected representatives to ensure that the Judiciary does its job properly.
Pakistan has just got rid of the collegium. It seemed at one time that Kiren Rijju would initiate a similar move in India. There is little point discussing the political role Chandrachud played in protecting, for the moment, the collegium. We don't know if another CJI would have done things differently. We don't even know if the thing is part of the 'basic structure'. In other words, we are not assessing Chandrachud in the only way a jurist should be assessed- viz. from the perspective of the science of law and the evolution of constitutional jurisprudence.
There is no such impact. This is merely a canard of a low, political, type. It is simply a fact that the Collegium has no constitutional standing. It exists to the extent that the Executive allows it to exist. Chandrachud is not a politician. He is a judge. We can't blame him, as a judge, for not also being elected Prime Minister of the country.
Once may be carelessness.
Bhatia carelessly sodomized one or two judges.
Twice, however, starts to look like callous and wilful disregard for personal liberty.
Bhatia is sodomizing lots of judges because he is a religious fanatic with a bias against a particular community.
Twice a judge of the Delhi High Court dawdled over bail cases – cases that ideally should not need more than a week to decide – for months on end.
Because they didn't want to release these sweet and nice rioters. How strange!
And twice the Collegium saw fit to not only condone such behaviour,
as it condoned Bhatia's sodomization of innumerable judges
to not only reward such behaviour, but to condemn the individuals at the receiving end of it to many more months in jail without trial, without even a decision on their bail appeals.
Because they didn't want to release those nutters.
We cannot mince words here: this is the grossest perversion
Bhatia is a pervert who continually buggers judges.
of the most basic, the most fundamental principles of the rule of law, and as the head of the Collegium, the responsibility lies with CJI Chandrachud.
Nope. It rests with the lawyers concerned. If there was any such case to be made, why did they not make it? The answer, obviously, is that Bhatia was incessantly sodomizing them. I even hear that he shat on their tits. But the Collegium bears no blame for his obnoxious conduct.
After all, was it not he who had famously and eloquently said, in the case of Arnab Goswami, that “one day without personal liberty is one day too many”?
Goswami was a notorious rioter who boasted of the many policemen he had killed.
But not, it seems, for the individuals jailed in the Delhi Riots Cases, where the days may come, and the weeks, and the months, and the years, but it is still not “too much.”
For some strange reason, judges don't want to let crazy fanatics loose on the streets of the City where they themselves live.
ii. The L. Victoria Gowri Case
Secondly: consider the set of circumstances around the elevation of Justice L. Victoria Gowri (which) was challenged on the basis that she had – allegedly – engaged in public hate speech while still a lawyer.
Just as Bhatia, allegedly, engaged in wholesale sodomization of the higher ranks of the Indian judiciary.
This blog post is not concerned about the substance of the allegations, or what should have been done about the elevation. What it is concerned about, however, is this: when the constitutional challenge was first orally “mentioned” before CJI Chandrachud’s Court, the Chief Justice publicly stated that “the Collegium has taken cognisance of what came to our notice and it was after our recommendation.”
In other words, some new information had come to light. But that information didn't change anything. It was obvious that there was a political angle to the allegations against her.
However, when the matter then came up before the Supreme Court bench to which it had been assigned, that bench repeatedly noted – before dismissing the petition – that the Collegium must have been aware of all relevant facts before making its decision.
The relevant fact was that she was qualified for the post. The irrelevant fact was that false allegations had been made against her.
To put the point as kindly as possible: both these things cannot simultaneously be true.
Yes they can. You can become cognizant of an allegation but then decide it has no foundation in fact.
Either – as CJI Chandrachud said – these facts came to light after the Resolution; or they
were not facts at all.
did not. There is no way to reconcile these diametrically opposite statements, coming from different wings of the Supreme Court. What really happened, then? Did the Collegium know, and took its decision regardless? Or did it not know, but preferred not to change a decision once taken?
The answer is simple. A false allegation was made. Similarly, the Court may refuse to entertain my plea that Bhatia's invisible cock be restrained from buggering judges up and down the land.
We will never find out, because – as I noted at the time – the Collegium’s Janus-faced character ensures a complete insulation from any attempts at accountability.
So, get rid of it as the Pakistanis have done.
The L. Victoria Gowri case was perhaps the starkest example of how, structurally, the Collegium functions as an imperium in imperio, a chameleon-like body within which judicial and administrative functions blur in a manner that ensures its decision is both first and final. This is not how healthy institutions in a democracy are meant to function.
But this 'institution' was created by the Bench for the Bench. But if they get too big for their boots then they will go the way of the Bangladeshi Chief Justice or the Pakistani Collegium. This is politics. It isn't the science of law which is the sole criteria by which a legal scholar should evaluate an erudite Judge like Chandrachud.
Money Bills
Which, in the Westminster model, are sacrosanct and establish the supremacy of the elected lower house.
First, the crucial question with respect to the judicial review of money bills – pending since November 2019 – remained untouched (even though it was listed for hearing in February 2024, and written submissions were filed).
The Judiciary must tread carefully. After what has happened in Pakistan and Bangladesh, the Bench will draw in its horns. It is up to Parliament to decide what is or isn't a 'Money Bill'. Judges have no popular backing. The whole bunch can be dismissed without any political backlash.
This is a question that not only goes to the heart of both parliamentary democracy
Which is founded on 'money bills' being sacrosanct. The aristocrats in the House of Lords were told to go fuck themselves. The King would create enough peers of the realm for the Lower House to get its way.
and the federal structure,
India is unitary, not federal.
but also, involves challenges to a host of laws that were enacted using the “money bill” route, and therefore escaped Upper House scrutiny.
Just as Judicial usurpation of authority had escaped Parliamentary scrutiny. But Judges must not push their luck.
It is also a future-looking problem: as long as the Court does not decide, every successive parliamentary session affords the executive an opportunity to evade unfavourable numbers in the Upper House using the device of the money bill. The democratic deficit is both deep and continuing.
Nope. That deficit arises where the directly elected chamber is deprived of its traditional prerogatives.
The Delhi Government Case
The Law has been clarified well enough in this regard.
Secondly, consider the dispute between the government of Delhi and the union executive, over control over Delhi’s governance. After the Delhi High Court handed down a judgement in 2016 upholding two executive notifications that effectively divested the Delhi government of any meaningful control over the bureaucracy (among other things), the case spent the next seven years at the Supreme Court, while the union executive continued to enjoy the benefit of the High Court judgement.
This is highly tendentious. The plain fact is that the constitutional position of the Union Territory has been constantly evolving as the city grew economically and demographically by leaps and bounds. The older view was that Delhi, as a very special type of Union territory, would be under the control of the Union Government with some limited municipal government and a sort of figurehead Chief Minister without much power- as Sheila Dixit confessed to being.
As I have written extensively elsewhere, this delay was entirely the responsibility of the Supreme Court:
why didn't it tell Kejriwal to fuck the fuck off? The answer is that the whole thing was a 'tamasha'- a piece of theatre. Corrupt officials will do whatever corrupt Ministers tell them to do. Its not as though IAS officers aren't all spineless lickspittles. Delhi has money. That's why its politics attracts ex-Income Tax cunts like Kejriwal.
first, it dithered over referring the case to a five-judge bench; next, it delayed hearing the reference; next, although it was finally heard in 2018 by the five-judge bench, CJI Dipak Misra wrote a judgement so vague and ambiguous,
it was straightforward. A US court would have invoked the doctrine of political question. Misra simply spoke of collaborative federalism- i.e. this was a tussle the two parties should work out between themselves. Substantively, it was the same as Chandrachud's later decision. In either case, it was obvious that the Central Government could prevail by using an ordinance and then passing a law. It was in the interest of Kejriwal's party to find a modus vivendi.
that when the case went back to a two-judge bench so that the judgement could be applied to the actual dispute, the two-judge bench split on what the five-judge bench had actually said (in another, bizarre twist that only happens in the Indian judiciary, these two judges had themselves been part of the five-judge bench); so there was no decision, and the case went back to another five-judge bench to resolve – and of course, once again, there was a delay in constituting that bench. So we arrived in 2023.
Where there is judicial delay, the parties to the suit may reach an understanding. But Kejriwal wanted a 'tamasha'. Then he himself fell foul of the law. Did he also get one of his female MPs beaten up? Perhaps. That should get him the votes of Delhi's women.
In the early summer of 2023, CJI Chandrachud wrote the judgement for the five-judge bench that entirely vindicated the Delhi Government’s position, which it had been arguing in front of various benches in various Courts over the previous eight years.
The Lieutenant Governor's power arises from either the President or the C.M save in certain specific fields. However, a Central Government Ordinance means that effectively the President has delegated power to him. That's what happened. The thing was really a storm in a tea-cup.
Put simply, the Court held that under the constitutional scheme, and based on constitutional principles of representation and accountability, the Delhi Government did have control over NCT’s civil service (for the most part). The Court’s judgement, however, lasted little more than a week: the executive brought in an Ordinance to restore its control – and followed up in the next Parliamentary session with legislation.
That's perfectly proper. Courts may point out that a particular action is ultra vires and the Legislature may remedy the matter.
Now, opinion may vary over whether, in its judgement, the Court ought to have accounted for – and addressed – this very predictable course of events that would follow.
Not if the opinion is held by a jurist as opposed to a lunatic. The Court may say- as an English court did- if a homicidal maniac escapes from a mental asylum and remains free for 28 days, he can't be arrested on the old charge. In doing so, the Court knows that Parliament will immediately change the law. That's a good thing. The intention was not to let a murderous lunatic roam free. It was to draw attention to a lacuna in the law. The plain fact is, Delhi is the capital of India. The Union Government may, for all sorts of reasons, greatly diminish the role of elected bodies within that territory.
In any event, if there was ever a case for an urgent hearing of a constitutional challenge, this was surely it:
This cretin has just proved that the opposite is the case!
not only was this a dispute between two federal units
There is only one Union Government. India is not a federation.
that had been going on for eight years, not only was the Supreme Court responsible for that delay because of its own inability to write one clear judgement laying down the law,
The judgment was clear. Kejriwal was urged to 'collaborate' rather than behave like a drama queen. We now know his motivation. The guy was corrupt and enjoyed getting his own female MPs beaten up- that too in his own official residence!
but also, this was hardly a fresh case: as the Court had itself acknowledged in its judgement, this was not a routine challenge to a government circular, but a constitutional dispute implicating core questions around representation and federalism.
Which the Central Government was bound to win because India is not a federation. There is no dual sovereignty.
Given all of this – and given that the Executive Ordinance/Parliamentary legislation was a transparent attempt to wrest back governing power only through a different legal device than what had been under challenge for all these years (see here and here), one would expect that the Supreme Court would have given this case utmost priority.
In which case the Central Government would have replied with even greater promptness with an ordinance. The Bench told Kejriwal to play nice. He didn't and now we know why. He was a crook.
On the contrary, however, after referring the dispute to a five-judge bench (for the third time!), CJI Chandrachud did not list the case again in the remaining year-and-a-quarter of his tenure. At the time of writing, it is still pending. And 2025 will mark a decade – that is, two full election cycles – since the dispute began.
A pointless dispute.
The Government of Delhi will have spent almost the entirety of its two terms in power stuck before the Supreme Court, effectively powerless to govern.
But not powerless to steal.
For an institution, one of whose founding purposes was the adjudication of disputes between the federal units,
there are no such units. This cretin thinks he lives in the US which does have dual sovereignty.
one would be hard-pressed to think of a more blatant, more egregious case of judicial evasion.
Or one could take the common-sense view that the Delhi Government was foolishly antagonizing the Central Government. Moreover, the Judiciary simply did not command the respect of anybody at all- including nutters like Bhatia- and thus could only either stick its head out on the chopping block or keep its head by getting on with its routine of being utterly shite.
I suppose the Indian judiciary, sooner or later, will accept a doctrine of political question and curb its own proclivity to meddle in matters where it has no competence.
a. Cognisance, suo motu cognisance, referrals, reviews, and curatives
To start with, there is a marked lack of clarity in how the discretion to admit and hear cases under the Court’s public interest jurisdiction is exercised.
Usurped power is always likely to become arbitrary power. But even Chief Justices may be threatened with a beating till they resign. Look at Bangladesh!
Consider, for example, CJI Chandrachud’s decision to take cognisance of the Adani-Hindenburg issue, and set into motion legal and regulatory machinery under the supervision of the Court. To this day, it is unclear on what constitutional basis the Court took cognisance of this case under Article 32 of the Constitution (which is for the enforcement of fundamental rights).
Including the right to constitutional remedies. Certain PILs were filed urging an investigation of the Adanis and making various allegations. In response, the Bench constituted an expert committee to look into the matter. Later a petitioner alleged that SEBI was not doing its job properly. The Bench should transfer the matter to the CBI or an SIT. This was rejected because the claims were wholly unsubstantiated. Bhatia pretends that the Bench picked up the case themselves for some fell purpose.
Whose fundamental rights were being impacted by the Hindenburg Report, by whom were these rights being violated, and under which provisions of Part III?
That was spelt out in the original PIL petitions the procedure for which are laid down in Order 38, Rule 12(1)(a) in the Supreme Court Rules, 2013.
None of this was explained; yes, a reference was made to protecting “the interests of Indian investors,”
because that was the gravamen raised by the PIL petitions under section 32.
but since when did the interests of Indian investors become a trigger for invoking the fundamental rights jurisdiction of a constitutional court?
Since those petitions came from anti-Adani, politically motivated, people who were alleging all sorts of nefarious connections between various people who happen to hail from a particular part of India.
The Chief Justice’s affirmative decision to exercise Part III jurisdiction,
which is what happens when the Bench transfers a pending matter to a different statutory body- e.g. from SEBI to CBI- so as to provide a constitutional remedy.
ostensibly to “protect the interests of investors,” stands in stark contrast to the decision to decline jurisdiction in a petition seeking judicial review over arms transfers to Israel,
a friendly nation not trying to export terrorism to us
at the threshold (i.e., without consideration of the merits of the petition).
Did you know CJI refused to entertain my petition that he chop off his own head and shove it up his rectum? Gautam however was happy to oblige- indeed, he had been beforehand in this respect.
As this post notes, the petition’s claims were grounded within India’s obligations under public international, international humanitarian law, and the Genocide Convention.
None of which apply. Hamas started the fight. But it is their own people who are dying faster. Bhatia thinks it very strange that India wants Israel, not its own enemies, to win.
Thus, whatever the Court’s final decision might have been (different courts across the world have taken different views on this issue), its refusal to even admit the case for hearing, citing what appeared to be a doctrine of absolute executive immunity in issues of foreign policy, is both baffling, and also inconsistent with other cases (such as the one discussed above), where the link with enforceable Part III obligations was far weaker, but where the Chief Justice’s Court was nonetheless far readier to intervene.
There is no Part III obligation to foreign terrorists. Bhatia thinks this is deeply unfair. Could the Bench have dismissed petitions from anti-Adani hacks? Sure. Perhaps it will be wiser in future.
Getting back to the Hindenburg PIL, it is important to note this is not a mere academic debate: it matters. It matters because the decision of the Supreme Court to take cognisance of an issue has downstream effects on other regulatory and political institutions.
To be fair, it looked as though the expert committee might improve the regulatory environment. Then we realized it was headed by a retired judge- i.e. was sure to be shit.
For example, saying that a matter is “sub-judice before the Supreme Court” can serve as an easy method of resisting scrutiny in other fora, such as – for example – joint parliamentary committee reports [JPCs] (in fact, this is exactly what happened).
Better yet is to shout 'liar, liar, your pants are on fire.' Still, Bhatia has at last mentioned the only reason the Bench was allowed to usurp power- except it wasn't really power, it was shit.
Thus, when the Supreme Court takes a matter to itself, there is an automatic constraint with respect to how that matter can be treated in other fora.
Not if you are Prashant Bhushan. Just go on Twitter and scream abuse at the Judges. They won't dare jail you for contempt.
It is therefore crucial for the Court to lay out with clarity and transparency the legal basis on which it is taking cognisance, the manner in which it is going about it, and what the legal outcome is going to be. In the Hindenberg case,
this was easily done. PIL Petitions had been received from anti-Adani hacks.
this problem began (as we have seen) right from the start, and continued throughout, with controversies around the members of the Committee selected by the Court, sealed cover reports, and so on.
Which is why some were foolish enough to think the Committee mightn't be shit. The problem was that the allegations were wholly unsubstantiated. It is one thing to keep crying wolf. It is another to accuse the Judges of being werewolves. How else can you explain the absence of wolves? They must turn into judges when not prowling about on all fours.
At times, it was unclear whether the Court saw its role as an adjudicatory body, or as a super-regulator. Indeed, it seemed to want to have the best of both worlds: to act as a technocratic super-regulator in that it was not required to anchor or publicly explain its decisions with reference to legal doctrine, but at the same time, as a court, in that whatever it did would not only have binding force, but be subject to no further dispute or appeal.
Nonsense! You can use a curative petition to appeal against the Supreme Court to the Supreme Court which will get confused, forget Res Judicata, and overrule itself. Bhatia is pointing at the stupid consequences of judicial overreach. Sadly, Chandrachud was part of the problem. Still, after what has happened in Bangladesh and Pakistan, we are going to see a more sober type of jurisprudence. Nobody bothers with nutters like Bhatia who are so ignorant of the law they think a judge can be sued for libel for remarks made when passing judgment!
This might have been the best of worlds for the Court, but it was not a particularly good situation for the integrity of the legal system and for the rule of law.
Both have been shit for many decades now. It is extra-judicial killing which keeps the country together.
Problems of inconsistency bedevilled CJI Chandrachud’s approach in other domains as well.
Nope. He did what his predecessors had done but with a touch more elan.
One can arguably justify the suo motu cognisance of sexual violence during the Manipur crisis, given its scale and the veritable collapse of State-maintained order in the state (although it is an open question whether the Court’s intervention helped things in any significant way).
It didn't. It was just virtue signalling is all.
However, cases such as the suo motu cognisance in the RG Kar rape-and-murder case raise questions about which instances of sexual violence warrant the Court’s direct intervention – overriding local law-enforcement and state authorities – and which instances do not: it cannot be simply on the basis of “vibes” or the manner in which the media reacts to a situation.
Sure it can. Why not? PILs are addictive.
Indeed, it is rather starkly noticeable that for a large part of CJI Chandrachud’s tenure, barring a late intervention in a single case in his last week in office, the Supreme Court never acted on the one issue that – because of its continuing, pan-India character – would have warranted the Court’s intervention: the issue of punitive and targeted home demolitions (“domicide”).
Chandrachud knows the Bench would be ignored. Who will send Rahul or Yogiji or Stalin to jail? Anyone who wants to live to the end of the week?
One may argue that the case was pending before another bench of the Court, but – as we shall see below – where the Chief Justice believed that a matter did warrant judicial intervention, he did not shrink from using his powers as the Master of the Roster to intervene. And what, one wonders, warranted intervention more urgently than the State-sanction, State-driven, extra-legal, frontier justice of demolishing homes as a response to law-and-order problems?
Why did Chandrachud not chop his own head off? What, one wonders, warranted this more urgently than the crying need of the hour which is to condemn Israel and stand shoulder to shoulder, sans head, with Hamas terrorists? It is an indelible stain upon the conscience of the Indian judiciary that it so signally failed to meet the demands of transformative justice at a time when trillions of Netan-Yahoos are being buggered to death by Bhatia's invisible cock.
Was this less important than the interests of investors?
Why has Adani not chopped off his own head? Does he really think 'investors' aren't much much more concerned over the fate of terrorists in Gaza than they are over their soi disant 'investments'?
Once again, thus, CJI Chandrachud’s deployment of these powers without adequate public justification remained a problematic point throughout his tenure.
The justifications in each and every case was provided by a petition, or petitions, filed in the proper manner. That's how Courts work. True, sometimes Judges go on leave or get promoted or retire, but his isn't all part of some sinister conspiracy. However, the abject failure of Chandrachud to chop off his own head is a blot upon the storied escutcheon of South Asian jurisprudence. Did you know that the Chief Justice of Sri Lanka- Justice Ravana- chopped off nine of his heads as a gesture of solidarity with Osama bin Laden?
These inconsistencies extended beyond cognisance. For instance, when the marriage equality petitions were filed before the Supreme Court, identical or similar challenges were in the process of being heard by the Delhi and Kerala High Courts. Continuing a long-standing problem where the Supreme Court appears to pick and choose when to allow High Courts to keep hearing a case, and when to short-circuit that forum, CJI Chandrachud’s bench brought up all the cases to itself without sufficient explanation.
The explanation was simple. Concerned advocates had approached the Bench. Since the respondent would be the Union Government, it made sense to lump all such petitions together and invite a response before a constitutional bench.
It also then referred the cases to a five-judge bench without a reasoned order of referral explaining why a case that was ostensibly about the interpretation of the Special Marriage Act required hearing by a Constitution Bench.
Because there was a constitutional question. Don't forget, where there is a lacuna in legislation, the Bench would prefer it if a political settlement is reached and an appropriate law is passed.
Other examples include a further, discretionary widening of the Court’s already wide discretionary powers in its “curative jurisdiction....
in other words, allowing appeals against the decisions made on appeals.
the NN Global Case,
is an unstamped arbitration agreement binding? Yes. It's a fucking contract, dude. The Stamp Act was about getting a bit of revenue for the British Sarkar.
where the Chief Justice-led bench, while hearing a curative petition in a case called Bhaskar Raju,
also about an unstamped arbitration agreement
made the following order concerning a different case (NN Global) which was not before it:
nothing wrong with that. A British court might have done the same thing.
'Having regard to the larger ramifications and consequences of the view of the majority in N N Global Mercantile Private Limited vs Indo Unique Flame Limited and Others1, we are of the considered view that the proceedings should be placed before a seven-Judge Bench to reconsider the correctness of the view of the five-Judge Bench.
Because insisting on 'stamped paper' makes us Indians look like we haven't crawled out of the fucking Victorian age. The thing is a fucking contract, dude! What matters is whether it is valid or not.
To no-one’s surprise, with an order like this setting the scene, a seven-judge bench led by the Chief Justice overturned the five-judge bench judgement in NN Global.
The Chief Justice is a Harvard man. He knows hatred of the Stamp Act was a cause of the American revolution. However, what is at issue here was not that some sort of fiscal offence was committed in terms of not using stamped paper but that there was a valid contract.
NN Global was about the validity of unstamped arbitration agreements. No doubt, the decision of the five-judge bench had caused significant concern in the commercial world.
It made us look like a garbage country living in Dickensian times.
Let us also grant that the judgement was incorrect. However, how can the Supreme Court’s curative jurisdiction – which is meant to be a highly circumscribed jurisdiction, limited to considering whether a gross injustice has taken place in a decided case, and which couldn’t have come to light earlier (such as the discovery of a fraud or forgery) – be used to reopen another, decided case, on grounds as vague as “larger ramifications and consequences”?
A contract is a contract is a contract even if some triflingly fiscal offence is involved. The larger ramification is that the law should not make a fucking ass of itself.
One can only justify this twisting of the Court’s existing procedures under a theory that grants to the Chief Justice a kind of extraordinary “guardianship” power over the Court as a whole. Under this theory, the Chief Justice would take a call about when judgments delivered by any bench of the Court – including by five-judge Constitution Benches – had got something wrong, and needed to be overturned.
Anyone can do this. You can approach the court or just defy the Bench and then threaten to smash their fucking skulls in. That's what worked in Bangladesh when a High Court reinstituted reservations which the PM had abolished six years previously.
The Chief Justice could then use jurisdictional devices designed for very different purposes – recall, review, reference, curative – to bring about this desired outcome. As we shall see, if there is one thing that appears to be common across CJI Chandrachud’s judicial and administrative acts, it is this recourse to an extraordinary overriding power, that stands above all else.
No it doesn't. This cretin doesn't get that to overrule a five member bench, the CJI had to get a seven member bench to back his view. He didn't have 'extraordinary overriding powers' at all.
Indeed, in another set of cases, this extraordinary power appeared even more starkly, to which we now turn.
b. An administrative master or a judicial master?
It is obvious that the administration of all Courts should be independent and the process streamlined.
The Chief Justice is supposed to be the “first among equals,” and that too, only in an administrative sense. Someone has to run the administration of the court, and that someone is the Chief Justice. There were instances during CJI Chandrachud’s tenure, however, where the line between administrative head and a “super court of appeal” within the Supreme Court became dangerously blurred.
Everything is always becoming dangerously blurred to this cretin.
For example, when a bench of the Supreme Court handed down an important judgement in Ritu Chhabaria’s Case on questions of default bail and personal liberty, bizarrely, the State attempted to have the Chief Justice’s bench recall that order; upon “mentioning”, even more bizarrely, the Chief Justice effectively stayed the judgement delivered by a different bench, noting that “in the event that any other applications have been filed before any other Court on the basis of the judgement of which recall is sought, they shall be presently deferred beyond 4 May 2023.”
Nothing wrong with that. He granted a brief stay and, as the Americans say, took the Solicitor General's assertion 'under advisement'. But he clarified the matter soon enough. In all relevant cases, the judgment in this case- viz. that bail could not be denied just by filing more and more chargesheets- was upheld. A slight delay made no difference to anyone. It is better to be safe than sorry in legal matters for the highest court.
As I noted at the time, this was a highly irregular use of the Master of the Roster’s powers for three reasons, which I set out here again:
No such powers were involved. The Solicitor General had a right to request a stay and to point out a possible legal lacuna. This was speedily disposed off. The Bench had granted interim bail having taken note of abuse of power by the Trial Court and investigating agency. There was a brief period when other courts were asked not to take this as a precedent. Then the matter was finally resolved. Grant interim bail under like circumstances. There was absolutely nothing irregular about any of this.
First, once a judgment of the Court has attained finality,
i.e. is published in the Supreme Court Reports. But there was an application from the Solicitor General to stay the decision. The Bench took this under advisement and clarified the matter quickly enough because, in fact, there was no need to alter the ratio. Harmonious construction already obtained.
there are, in essence, two ways in which it can be reversed: either through a review, which is heard by the same bench that passed the judgment, or if another bench of coordinate strength, after a full hearing on the same issue, disagrees, and refers the matter to the Chief Justice for constituting a larger bench to resolve the difference in views. These guardrails are vital to ensure the sanctity of precedent, and to ensure that judgments of the Court cannot simply be altered on a whim.
But the division Bench's decision wasn't altered! This cretin does not get that Ritu Chabbaria is sound law!
What has happened here, however, is that the State – being displeased by a judgment against it –
just like any party displeased with a judgment against it
has attempted to have the judgment recalled – and that too, by a different bench!
Stayed, not recalled.
To achieve this outcome, the State has gone to the Chief Justice, and essentially invoked the Chief Justice’s administrative power as master of the roster to constitute benches – but for the purpose of judicially reversing an unfavourable judgment.
But anyone at all can go to the Chief Justice and ask for the same remedy! The Solicitor General of India is not an ignorant fool. Was his representation sound in law? No. The judgment stood.
It is a matter of grave concern that the Chief Justice’s bench has passed an order acquiescing to this request.
Suppose it had failed to do so. The Government would then allege that the Bench has not done its job. It could pass an ordinance or change the law. Similarly, any aggrieved party, unhappy with the decision of the Bench, can use such power as they command to overturn it. Look at Bangladesh. The Chief Justice was forced to resign after failing to wholly quash unpopular reservations.
Not only is the constitution of a three-judge bench to consider a “recall” of the Ritu Chhabaria judgment irregular,
There is nothing irregular in getting a stay on a decision. It gives you time to prepare your appeal (or, in this case, review petition) . If the Solicitor General wasn't simply flying a kite, he was welcome to seek this course.
but for a three-judge bench to be even constituted in this case, there would have had to first be a
review petition. Where was it? If there is no petition how can you constitute a fucking bench to hear what doesn't fucking exist?
reasoned judgment by a coordinate bench disagreeing with the view taken in Ritu Chhabaria,
Nope. That's not how review petitions work. On the other hand, if there is a contradiction in case law, a bigger Bench may be constituted to iron out the wrinkles.
and providing reasoning for the same. That entire process has been short-circuited in this case, purely by the Chief Justice invoking administrative powers of the master of the roster.
No. There was a brief stay but no grounds for a review petition. The very purpose of the Ritu Chabbaria judgment was to prevent inordinate delay and lack of relief to those denied bail by the incessant filing of more and more charge sheets. It would be absurd if the Bench had to keep setting up more and more Benches to hear appeals to appeal to present review petitions. At the same time, refusal to grant stay orders when requested for an admissible purpose, may cause the judiciary to be disintermediated or subjected to considerable abridgement of powers.
Secondly, and worse, in the final line, the Court says that pending default bail applications cannot be considered by other courts until the three-judge bench has heard the “recall” application.
The thing was only stayed for a total of 12 days. In this particular case, the Bench said 'application seeking recall of a final judgment is not maintainable and amounts to an abuse of process.' Thus, the current position is though the Bench has an inherent power of recall, so far as we know this can only be done by review or curative petitions.
Effectively, this is one two-judge bench interdicting – or staying – the operation of a coordinate bench’s judgment – and that too, on an oral, ex parte mentioning, without a reasoned order.
Nonsense! Everybody has the right to ask for a stay pending presentation of a review petition. In this case, the Solicitor General was flying a kite about a discrepancy between the coordinate bench's decision and extant case law. Just think for a moment what would happen if the Courts start refusing stay orders in matters re. Policing or Military security. What if Chabbaria was a billionaire fraudster who fled with his ill gotten gains? What if he was a spy or a terrorist? It is unreasonable to refuse a stay order to a Solicitor General or other such legal luminary without looking into the matter.
Once again, this appears to be a perilous escalation of the Chief Justice’s administrative powers as the master of the roster into judicial powers over other judges of the Court:
Where was it? CJI confirmed the decision and there was no fucking review petition. By Bhatia's reasoning, Chandrachud is an Islamic terrorist because he went into a temple. Clearly the fine line between worshipping there and smashing the place up became dangerously blurred. Also he must have assassinated Modi when he invited him to dinner. Chandrachud is a very dangerous terrorist who is killing Hindus and destroying temples- or, if that isn't entirely the case, he is coming dangerously close to committing such heinous acts.
it effectively turns the Chief Justice into an imperium in imperio, an appellate authority within the Supreme Court.
No it doesn't. Review petitions will be heard by bigger Benches. The CJI will be more, not less, reliant on his brother judges.
Thirdly, and most importantly, on substance: the judgment in Ritu Chhabaria has not been expressly or formally stayed. That being the case, on what basis has this bench denied to detainees across the country their right to default bail – which, as per Ritu Chhabaria – is a fundamental right under Article 21 – until after the 4th of May?
He means the 12th. The answer is that the basis on which the Bench did so had to do with the arrow of time which moves forward not backward. That is why when India became independent in 1947, Mangal Pandey in 1857 did not become free of his British overlords. This is clearly the fault of Chandrachud.
Effectively, even as one bench of the Supreme Court has held that default bail is a fundamental right, another bench – on an oral, ex parte mentioning by the State – has suspended the operation of this fundamental right.
Because the Solicitor General might not have been flying a kite. There may have been merit to a review petition. This is the normal manner in which stay orders are given. Suppose a future CJI departs from this sensible procedure. The Executive may disregard its orders and interpose some other body to approve or disapprove judgments on the grounds of public safety etc. The one weapon the Judges have is 'contempt'. But if they can't use it against Prashant Bhushan- a failed politician- whom can they use it against? Nobody at all. The police and the jailors will obey only those who pay their salaries.
In a similar but not identical vein, in X vs Union of India, CJI Chandrachud took the highly unusual step of exercising his powers as master of the roster
he is in charge of administration. It was the judge in the case who directed the ASG to approach him and get it relisted
to himself direct that in a medical termination of pregnancy case that had been decided in favour of the pregnant woman, a recall application be placed before the same bench (on the ostensible basis that one of the members of the Medical Board had submitted additional information by email to the Additional Solicitor-General after the judgement).
This is false. A two judge Bench had agreed to medical termination of a pregnancy but the next day it became known that the foetus was viable. Would the judges give an order for its heart to be stopped? It would otherwise have severe developmental problems. At this point, one judge said he was functus officio and so the CJI, as administrative head, would have to reconstitute the Bench to review the case (though the ASG was using the term 'recall') Sadly, once this was done, the two judge bench failed to agree- the lady judge, it seemed, was squeamish about killing babies. It then had to go back to the CJI who constituted a three judge bench which permitted the birth of the baby. No wonder batty Bhatia is angry with Chandrachud! He should have set a good example by beating the tiny creature to death.
The plain fact is the original Bench did not know that the foetus would survive and that it would be necessary to stop its heart. It appears that the petitioner too had a change of heart. She had previously suffered post partum depression. As far as we know, though mother and baby may no longer be together, both are in good health.
Once again, it is unclear how an application for recall of a judgement passed by a different bench altogether can be placed before the Chief Justice of India,
Justice Kohli, one of the original judges, directed the ASG to approach the CJI because he was the administrative head and he needed to reconstitute the Bench for 'review' (or 'recall')
and how he can act on it:
because that's his fucking job- you cretin! He has administrative powers to do precisely the thing that he did which, everybody would agree, was the right thing to do.
this is not the conduct of an “administrative first among equals,”
Kohli said 'CJI has administrative powers to reconstitute the Bench' or words to that effect. Part of his job is being master of the roster. He did that job well in this particular case.
but of an intra-appeals court.
Judge Kohli sent the ASG to knock on his door because he is the administrative head.
Indeed, the record shows that CJI Chandrachud was well aware of this: because during the hearing of the recall application, the original bench returned a split verdict, and the matter had to be referred to a three-judge bench. CJI Chandrachud exercised his powers as master of the roster and placed the case before his own bench;
He acted promptly and did the right thing. It seems his talk of his devotion to Lord Ram is not just hot air. The guy is a real Hindu.
in a judgement disallowing the pregnant woman from getting an abortion, he specifically noted applications for “recall” could end up creating an “intra-court appeal” system – but that in this case, given the exceptional facts and circumstances, the Court was invoking the notorious Article 142 of the Constitution (“the power to do complete justice”),
e.g refusing to order Doctors to stop the heart of a tiny little baby.
and proceeding with the case.
The pregnant woman did not want the heart of the foetus to be stopped nor for it to suffer severe developmental abnormalities. The judgment says ' the email from AIIMS (asked for a direction to) to the doctors to stop the heartbeat. This Court is averse to issuing a direction of this nature... The petitioner, too, did not wish for this Court to issue such a direction. This was communicated by her to the court during the course of the hearing. In the absence of a direction to stop the heartbeat, the viable foetus would be faced with a significant risk of lifelong physical and mental disabilities. The reports submitted by the Medical Board speak for themselves. For these reasons, we do not accede to the prayer for the medical termination of the pregnancy.'
In Isaac Asimov’s Foundation, one of the characters, Salvor Hardin, famously says that “violence is the last resort of the incompetent.” One may paraphrase him here: “Article 142 is the last resort of the capricious.”
Chandrachud is an utter scoundrel. Why did he save the life of a baby? No wonder Article 142 is so 'notorious' for the likes of batty Bhatia.
He writes- On the other hand, in the domain of abortion law, and contrary to the tenor of his own prior record, CJI Chandrachud rather gratuitously (and, in my view, unnecessarily) further entrenched the “foetal interest” doctrine into Indian abortion jurisprudence: something that is a complete import from United States culture-war constitutionalism, and had, at least thus far, never been a prominent feature in India’s admittedly imperfect – but more liberty-protecting abortion doctrine.
Does this square with the facts of the case? A female judge refused to stand by a judgment which would result in the stopping of the heart of a tiny little baby. Was she American? Yes! She was a blonde lady from Texas who votes for Trump. Because of the split decision, the case had to go before a three judge bench. It turned out that three male judges were just as squeamish as the blonde lady. Moreover, the petitioner decided she did not want the heart of her baby to be stopped, nor did she want it to grow up with very severed developmental disabilities. Her mental health could be well managed by the hospital and thus she would not suffer greatly as a result of having the baby rather than extracted from her and then murdered by Doctors under the direction of Judges.
To Bhatia this is clear evidence that Chandrachud- already notorious for killing Modi and smashing temples (or dangerously blurring the line between doing so and not doing so at all)- has imported American legal doctrines. This is also the reason that he has not chopped off his own head to stand shoulder to shoulder, sans head, with Hamas terrorists. Meanwhile, trillions of Netan-Yahoos are being sodomized every day by Bhatia's invisible cock. Such is the sad saga of batty Bhatia vs. non baby-killing Chandrachud.
