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Mainstream, VOL LVI No 42 New Delhi October 6, 2018

The Judicial Archer

Sunday 7 October 2018, by S G Vombatkere

In a Mahabharata tale, Dronacharya—who taught the skills of warfare to the Pandava and Kaurava princes—overheard Duryodhana saying that he unjustly favoured Arjuna over others. To prove him wrong, Dronacharya decided to test his pupils, by placing a coloured wooden bird on a branch and asking them to strike it on its eye with an arrow. But before shooting arrows, he asked each in turn what they observed. Yudhishtir said that he saw a wooden bird on the branch, other birds in the tree, and the leaves moving in the breeze. The others said almost the same thing, stating their observation in terms of colour of the wooden bird, other birds, sky, moving leaves, etc. Arjuna, the last to be asked, displayed his sharp focus when he confidently and simply stated that he saw only the eye of the bird.

Noting that one of Arjuna’s names is Dhananjaya, and fast-forwarding to present times, it is Justice Dhananjaya Chandrachud’s focus on the “eye of the bird” which has penetrated the legal thicket of some of the most complicated cases heard before the Supreme Court of India. He has brought his razor-sharp intellect to bear on the constitutionality of the arguments of both Petitioners and Respondents, and boldly, unequivocally and succinctly delivered judgments worthy of a latter-day legal Arjuna.

Justice Chandrachud has made judicial history with the liberal slant of his judgments, which have been appreciated equally by laypersons, lawyers and jurists. It is worth quoting him in three cases apart from the Aadhaar matter. In the Bhima Koregaon case, he wrote: “... dissent [is] the safety valve in the pressure cooker of democracy and it cannot be muzzled by the brute force of police.” In the matter of decriminalising Section 377, he wrote: “It is difficult to right the wrongs of history. But we can certainly set the course for the future.” And in the matter concerning passive euthan-asia, he wrote: “The right to a dignified existence, the liberty to make decisions and choices and the autonomy of the individual are central to the quest to live a meaningful life.”

In his dissenting judgment in the Aadhaar matter, referring to the passage of the Aadhaar Act as a Money Bill, which effectively by-passed the constitutional authority of the Rajya Sabha, Justice Chandrachud described this as an abuse of the constitutional process, amounted to subterfuge, violated its basic structure and was a fraud on the Constitution. (para 117) Hitherto, the decision of the Lok Sabha Speaker on whether or not a Bill could be treated as a Money Bill was accepted as final. But the majority judgment in the Aadhaar matter stating that the Speaker’s decision on this issue will now be open to judicial review, appears to obliquely support the validity of Justice Chandrachud’s outspoken comment. As Joshua Patnigere has rightly commented: “It is submitted with the utmost respect to the judgment of the majority bench that the view taken by Justice Chandrachud is a very astute one.” [Justice D.Y. Chandrachud’s dissenting opinion in Aadhaar judgment raises very valid points about parliamentary process; <https://www.firstpost.com/india/jus...> ; September 28, 2018.]

The importance of the subtle “concurrence” of the majority judgment on the Money Bill aspect with Justice Chandrachud’s dissenting judgment should not be discounted. It could well happen that the validity of the Aadhaar Act proclaimed by the majority judgment is questioned in the days to come by a call for its judicial review, bringing the constitutionality of the Aadhaar Act into renewed focus. After all, there is more than one precedent to a dissenting judgment forming the stepping stone to major change in law, perhaps the most famous being Justice H.R. Khanna’s lone dissenting judgment in ADM Jabalpur vs. Shiv Kant Shukla, by upholding the right to liberty and life during the dark days of the Emergency. As an aside, it is noteworthy that Justice Khanna’s supersession to the post of CJI is understood to be the result of his dissenting judgment. According to the present age-and-seniority line-up of Supreme Court judges, Justice D.Y. Chandrachud is reportedly slated to be the CJI in 2022. Four years from now, the prevailing political climate may dictate his appointment as the CJI. In the meanwhile, may his judicial arrows continue to fly true!

Major General S.G. Vombatkere, VSM, retired as Additional DG (Discipline and Vigilance) in the Army HQ AG’s Branch. His area of interest is strategic and development-related issues.

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