Questions by judges are to gain clarity… a case is not concluded until last word is said: CJI D Y Chandrachud | India News

How have you calibrated the govt-judiciary relationship?

The relationship between the government and the judiciary is already defined in the framework of the Indian Constitution. On the judicial side, courts are empowered to review governmental actions. However, on the administrative side, the court and the government collaborate just as any two administrative institutions do to improve the lives of citizens. We constantly work with the government on projects to improve judicial infrastructure, make courts more accessible, and ensure justice delivery. In that role, the Chief Justice of India acts as a point of coordination between various stakeholders in the process of facilitating access to justice. My office has maintained an open dialogue with the officers in the government on planning and operationalising steps to advance the administration of justice for citizens.

There were complaints in the past about the due process not being followed. How far have you been able to address this?

It has been my constant endeavour to institutionalise as many processes as possible, so that irrespective of who the Chief Justice is, the processes happen in the designed manner. I will give two examples. One of the first things I did as the Chief Justice was to lay down certain norms within the Registry as to how cases are to be listed and how mentioning by lawyers would be done. This has regularised the process completely. Second, in the collegium resolutions, we have now clearly stated the parameters on which appointments to the Supreme Court are to be made. Laying down guiding parameters ensures transparency and accountability in a system.

You had said that judges should now learn to adjust to the social media era. How do you rate the change, if any, after one year?

Social media has drawn enormous attention to the work of the judiciary. In particular, live streaming of proceedings have led to widespread engagement on what happens inside the courtrooms and what judges do. In that way, the statements made by judges are reported on social media widely, even without them being on social media. There are both positives and negatives of this. While people are now aware of what is happening in court proceedings, this new information also allows people to selectively report (often out of context) statements made by judges during oral arguments. For instance, one or two questions asked by a judge during a two-week-long hearing are sometimes reported as though it is the court’s final verdict. This is not the right approach to report on court proceedings. Judges often ask questions to seek clarity on facts and on legal interpretation, and these are not their final findings. Court reporters ought to be sensitised to these realities.

Furthermore, the Court cannot be entirely reliant on the media to communicate the work it does as an institution. A lot of new initiatives being taken by the Supreme Court do not get reported. People have a right to know about the work being undertaken by the judiciary, as it involves spending public money and is being done to benefit the citizens of the country. To address the communication gap between the judiciary and citizens, the Supreme Court of India has now launched a monthly newsletter called the ‘Supreme Court Chronicle’, which documents the latest developments at the Court including key recent judgments, initiatives, and ongoing projects. I am sure that this will increase people’s awareness of the work that we are doing.

You said recently that courts have become an important centre for social dialogue. Does it also indicate a diminishing role of Parliament in promoting social dialogue?

Parliament represents people’s will and their aspirations. Throughout our history, citizens’ movements have mobilised to engage with the elected leaders. Marginalized communities such as Dalits mobilised to get important legislations such as the Prevention of Atrocities Act passed in Parliament. However, Parliament and the Court have different institutional structures and different powers. There are sometimes issues which require intervention of the Court. For example, Parliament passes legislation that can bring about important social changes, but it is not designed to stop individual cases of rights violations. Citizens will always choose their forum of redress based on the institution’s role and capabilities. Similarly, often the Court and Parliament work in a complementary fashion. The Supreme Court has passed judgments such as Vishakha in 1997, where certain guidelines to prevent sexual harassment at workplace were laid down. The judgment was the result of the petition brought by the women rights’ groups. This judgment later became a law, due to constant negotiations by women groups. In that way, both Parliament and Judiciary facilitate a social dialogue but also speak to each other. Citizens may approach the Courts to act as a mediator in their quest for their rights. In those cases, the Supreme Court has asked questions from the government to enable citizens to seek redressal of their issues. However, courts are also bound by institutional boundaries laid down in the Constitution.

Your concerns, if any, on appointment of judges by govt. What prompted the SC to take up the issue of delay in appointments on the judicial side when the tradition has been to settle such issues amicably through internal discussions?

There are several petitions relating to judicial appointments which have been filed by citizens. Citizens are important stakeholders in the appointment of judges, as a lack of judicial capacity adversely impacts the judiciary’s ability to dispense justice to citizens. While citizens don’t have access to internal discussions for reasons of confidentiality and privacy, hearing these petitions allows citizens to transparently press any grievances they have with the government on the non-appointment of judges. The Court hears these petitions as any other regular matter.

When you look at Indian cultural practices through the prism of constitutional morality, there is a high chance of misunderstanding them. The argument being,  it’s after all morality distilled from the values of the Constitution which itself is a borrowed text.

I think that it is a misnomer that the Constitution of India is a borrowed text. First of all, any constitution framing does not happen in isolation from what is happening in different parts of the world. There are certain constitutional values which are universally accepted. So when those values are adopted in any constitution, it is not that those values are foreign or borrowed. But, it demonstrates that humanity works on certain well-accepted and common constitutional principles. Secondly, the framers did not unthinkingly adopt provisions in totality from other jurisdictions, but consciously incorporated them in the Indian Constitution and where necessary, modified them to suit the Indian conditions. Thirdly, there are many provisions in the Indian Constitution which are unique to India such as the abolition of untouchability or the content of the Directive Principles of State Policy (DPSPs). The DPSPs include obligations on the government to legislate for free legal aid, local governance through panchayats, and the protection of the environment. Even after the Constitution was framed, it has been amended over a hundred times. Multiple generations of Indians, through Parliament, have given voice to their own aspirations for the Constitution through the amendment process. For example, entire governmental structures such as the Panchayats and the GST Council have been created through constitutional amendment alone and are uniquely Indian.

Keeping these facts in mind, one must understand that the Indian Constitution as a document which imbibes universal constitutional values, while at the same time continually adjusting those principles to address the problems facing India. It is a document conceived, adopted, amended, and continually operated by Indians.

No doubt, in certain situations, the adoption of the Constitution marked a tectonic shift which demanded a re-thinking of Indian societal practices. But we should not reject constitutional morality because it may sometimes be in tension with existing social practices. We must recognise that the constitution itself sought to reform social practices to ensure the citizens were not dominated on the sites of religion, caste, ethnicity or other cultural markers.

What are your priorities for the next one year?

The priorities are many. The foremost is that the Supreme Court adjudicates the important constitutional matters pending before it. Listing dates of several such matters have already been communicated to the lawyers. Another priority is to make the judiciary more accessible to the common public with the help of technology. With the Phase III of the e-Courts project being sanctioned by the Government, it will be my endeavour to ensure that the targets of the project are met in a holistic manner. Two other crucial goals are the filling of vacancies in the district judiciary and High Courts, and the use of technology, new case management systems, and data analysis to tackle pending cases. Fulfilling these will significantly increase the institutional capacity of the judiciary to meet the needs of the nation. As I said, I have been trying to institutionalise all my initiatives so that they continue to happen even after my tenure ends. For that purpose, I have been in constant touch with my colleagues who are in line to be appointed as the Chief Justice, so that there is continuity in administrative decision-making.

What process changes, if any, can be undertaken to make the Supreme Court more inclusive in terms of religion, caste and gender representation?

The idea of representation can be understood in terms of composition of the bench and the staff of the Supreme Court. On the appointment of judges, the Supreme Court Collegium has clearly laid down ‘diversity’ as one of the factors to consider. This includes gender, caste, and regional diversity from the various High Courts. We have tried to balance diversity with the all-India seniority of the judges. Unfortunately, for many years, the Bar was the sole preserve of men. This is reflected by the limited presence of women amongst the senior High Court Judges. However, this paradigm is changing in the judiciary. The recent results of judicial service examinations show that in many States more women have been recruited as judges than men. So as the demographics of the legal profession change, we will continue to see more diversity. But the task of today is to ensure that we do not fail the exceptional candidates who have battled against the incredible prejudices of gender, religion, and caste, to rise to the level of Judges of the High Courts.

In the regular recruitment of staff, the seats are reserved in the prescribed percentage. In contractual positions such as recruitment of law clerks, we included a clause in the Scheme in April 2023 which provided: “The Supreme Court of India is an equal opportunity workplace, and shall formulate and implement a diversity and inclusion policy, as and when approved. Relevant data may be collected from the candidates.” This year, we conducted an examination for selection of law clerks, and collected relevant data. Before the examination of next year is conducted, we will adopt a diversity and inclusion policy. In addition to this, a number of judicial officers come on deputation to work in the Registry. Around half of the number of judicial officers that came on deputation in my tenure have been women, drawn from diverse regions of the country.

Courts often get drawn into subjects or issues in which judges do not have enough authority or command over. For instance, religious practices or science-related subjects. Should courts avoid it, or can they meaningfully resolve these issues even if they do not have technical expertise?

The role of Courts is to adjudicate all matters that involve disputes over legal rights and obligations. If a question of law is involved, a judge will never say, “because I am unaware of how a particular industry, technology, religion, or medical procedure works, I cannot adjudicate the case.” The task of the judge, assisted by the lawyers and other stakeholders, is to sufficiently understand the facts before the court to decide the legal dispute at hand. There are certain established legal and constitutional principles which come into play in the adjudication of specific issues and this may alter the depth of understanding required in a given case. In an emerging area of law, judges sometimes rely on the common law principles, the judgments of foreign courts, or the existing standards of judicial review. Simultaneously, it is also important for judges to continually educate themselves on a variety of contemporary issues. In this regard, our Judicial Academies are continually organising training for judges by the country’s foremost experts.

Many a time, observations by judges while hearing important cases are much more remarkable and are reported widely than the final order or judgment. The final order has very little from the observations made.

During a hearing, judges are ascertaining the facts, understanding the scope of the case, and testing various hypotheses. Questions and conversations during the hearing are intended to gain clarity on the point of law or facts that are being argued in the case. It is a process which has been happening in the courtrooms even before live-streaming or live-tweeting of conversations in courtrooms started to happen. Only now, with the advent of live-coverage, this phenomenon is being reported as a divergence. The media is tasked to understand and report questions asked in court, and explain to their readers that such questions or observations are made by judges in the context of an open-ended dialogue. Quite often, journalists report questions asked by a judge out of context, which creates a misconception in the minds of the public that a judge’s observations during a hearing provides some indication of how they will eventually rule. Even after hearings, we revisit the submissions of lawyers, read the cases they have brought to our attention, and have conferences with our colleagues on the Bench. So we should never read observations made during hearings as indicating the probable course of decision making in a case. An experienced judge knows that a case is not concluded until the last word is said.