Democratic erosion does not happen in one sweep, but slowly, says DY Chandrachud: SC judge bats for independence of judiciary, transfer of judges

Supreme Court Justice DY Chandrachud weighed in on the challenges facing the Indian judicial system and noted that there was a need for more nuance in how to resolve the situation of a judge's "wrongful behaviour". Stating that the system as it is right now, allows for only two possibilities — to impeach or to transfer — Chandrachud called for a "more balanced and nuanced mechanism" to make judges more accountable.

Chandrachud on Tuesday was addressing a crowd that the launch of the book 'How to Save a Constitutional Democracy' by Professor Tom Ginsburg and Aziz Z Huq at the University of Chicago's Delhi Centre. He said that while the Indian Constitution speaks of "only" of the two possibilities, "impeachment is not necessarily an answer in every situation you can think of regarding judicial demeanor".

File photo of Justice DY Chandrachud. PTI

"Similarly, transferring a judge is no solution, for a judge who has a problem in a place where she or he is posted," he added. Chandrachud, who was a significant voice in several landmark judgments last year, made the statements in the backdrop of the resignation of former Madras High Court chief justice VK Tahilramani after the Supreme Court collegium transferred her to the Meghalaya High Court "in the interest of better administration of justice".

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"While various quarters were critical of the Collegium for not reconsidering Justice Tahilramani's request against her transfer, the Collegium maintained that it had cogent reasons for its decision, while keeping the same reasons under wraps," Bar and Bench reported.

Chandrachud has been a significant voice of dissent in several landmark decisions. In the judgment on the validity and extent of one of the Centre's flagship programmes, the Aadhar database, in 2018, Chandrachud wrote the only dissenting note in which he held that it could be used as an "instrument to turn India into a surveillance state". Another important stand was in ordering setting up of a Supreme Court-monitored SIT to probe the Bhima Koregaon case related to arrest of five rights activists.

He also coined the phrases — 'Dissent is the safety valve in a democracy; the pressure cooker will burst if you try to muzzle it' and 'Liberty cannot be sacrificed at the altar of conjecture (of police or authorities)'. Chandrachud, the son of a former judge Justice VY Chandrachud, has gained a reputation for his "lucidly written" judgments.

In Tuesday's event, he also made observations regarding the independence of the judiciary and what the framework should be to "insulate the judiciary from wanton attacks on its institutional integrity". "It is important to understand that you need to trust your judges, you need to trust your courts, because if that element of trust towards the judges and the courts disappears, I think there is a serious problem we are going to have in the democratic set-up itself."

Chandrachud also said that the debate around federalism has "progressively sharpened". He said, "Democratic erosion does not take place in one sweep but happens slowly. Small instances, when left unguarded, pose a threat to constitutional democracy. Judges have to look at how these small aspects are implemented."

Batting for unconventional means to deal with vacancies in the judiciary, Chandrchud asserted the benefits of appointing "ad hoc judges" in the high courts. "I see no reason to not appoint ad hoc judges in high courts with large vacancies. Even the Supreme Court had three ad hoc judges when the Kesavananda Bharati case was being heard to take care of day-to-day work of the court since 13 judges were hearing that case for months,” he said.

With inputs from agencies