12 July 2020 4:15 AM GMT
A hundred years since he was born and thirty five years after he retired, it is appropriate to remember and pay tribute to Justice Y. V. Chandrachud, the 16th Chief Justice of India. He has the unique distinction of having had the longest tenure of about seven and half years as Chief Justice of India which would in all probability remain unparalleled. He was indeed a great judge, one...
A hundred years since he was born and thirty five years after he retired, it is appropriate to remember and pay tribute to Justice Y. V. Chandrachud, the 16th Chief Justice of India. He has the unique distinction of having had the longest tenure of about seven and half years as Chief Justice of India which would in all probability remain unparalleled. He was indeed a great judge, one who could hold his own among the great of all time anywhere, and a gracious human being. To borrow what was said of a former US Chief Justice Harlan Fiske Stone, Justice Chandrachud was a judge's judge and his idiom was of the law.
Yeshwant Vishnu Chandrachud was born on July 12, 1920 on the holy Ashada Ekadasi- Hari Shayana Ekadasi, a very auspicious day according to the Hindu calendar which fell on 1st July this year. His father Vishnu Chandrachud was one of the earliest LLMs of the Bombay University and was the Diwan in the then princely State of Sawantwadi. He lost his mother when he was very young and was brought up by his uncle, N.B.Chandrachud, a leading lawyer of Poona. A brilliant student, Yeshwant had a very distinguished academic career. He was truly a man of letters- well and widely read and highly cultured - a 'cultivated man' in the picturesque language of Justice Frankfurter. He did mention to me once that most of his wide and varied reading was done before completing the high school. That is the measure of the man. He did his B.A. Degree in History and Economics from Elphinstone College, Mumbai and Law at the Pune Law College. He obtained a first class first and also many prizes and scholarships. He sat in the chambers of Motilal Setalvad for sometime studying for the O.S. examination to fulfill a condition of one of the scholarships. He joined the Appellate Side Bar and was a one hundred percent product of the Appellate Side of the Bombay High Court, to use his own words.
For some years he was along with Nani Palkhivala a part time professor in Law at the Government Law College, Mumbai. He recounted in later years how he and Nani would share a horse-drawn 'baggi' to reach the law college in time, as they could not afford a taxi. Their students included some of the best legal talent in post independence India- Fali Nariman, Soli Sorabjee, Anil Divan, Ashok Desai, Murali Bhandare, to name a few. All of them shared the view that the lectures of Chandrachud and Palkhivala were the most interesting; it is said that Chandrachud was the more humorous. They never missed those classes and wished that those lectures would not end but go on. Palkhivala's and Chandrachud's classes always had full attendance because of their erudition, command over language and teaching skills.
Yeshwant Chandrachud soon established himself as a sound lawyer and effective advocate. Chief Justice Chagla with his discerning eye for talent spotted both Yeshwant and Nani and greatly encouraged them. They were extremely good in their own right and would have gone very far in any case, this encouragement helped them bloom and shape themselves and shine perhaps with greater ease and confidence. Indeed Chief Justice M. L. Pendse once told me how as a young lawyer, he used to watch Chandrachud handle a large number of briefs effortlessly, competently and with finesse and how Chandrachud had advised him as to how to go about the job. After being Additional Assistant Government Pleader and Assistant Government Pleader, Chandrachud was appointed Government Pleader in 1958 and in that capacity he was the second Law Officer of the Government, next only to the legendary Advocate General Homi Seervai. He played his part admirably well. He was equally adept in both civil and criminal matters. He prosecuted the well known Nanavati case in the Bombay High Court and briefed Setalvad in the Supreme Court. The atmosphere was charged with a powerful lobby campaigning in favour of Nanavati. Chandrachud stood his ground with exceptional ability and unimpeachable integrity. Had he not fearlessly held his ground as Prosecutor, the High Court would not have quashed as perverse the verdict of the jury which held Nanavati not guilty. The successful prosecution of Nanavati showed his forensic ability as a lawyer on the criminal side. His performance in that case was outstanding and reputed to be one of the best ever in the Bombay High Court. Chandrachud argued an election appeal for 20 days with great ability and tenacity but all along the court was against him; he, however, stuck to his points and on the 21st day the tables were turned and he succeeded. A sound grip of the fundamentals, clarity of thought and a rare felicity of expression were his gifts.
On March 19, 1961 Y. V. Chandrachud was appointed a Judge of the Bombay High Court and then began a glorious judicial tenure. On August 28, 1972, he was elevated to the Supreme Court and was appointed Chief Justice of India on February 22, 1978. Great qualities of head and heart marked the man and the judge. His intellectual brilliance, profound scholarship, the range of his mind and liberal outlook, his judicial vision and craftsmanship, his pronouncements characterized by precision of thought and elegance of expression and above all his genuine humility and friendliness will be long remembered and cherished. Indeed on his elevation to the Supreme Court it was said that he was a judge par excellence; a keen desire to do justice, clarity of thought, lucidity of expression, patient hearing, a very keen sense of humour and unfailing courtesy endeared him to all.
He came to the Supreme Court at a critical juncture in the nation's history as also of that august institution. Golaknath (AIR 1967 SC 1643), Cooper (AIR 1970 SC 564) and Madhavrao Scindia (AIR 1971 SC 530) had, in some sense, pitched the executive and the judiciary against one another and the stage was set for the biggest legal battle- Kesavananda Bharati (AIR 1973 SC 1461). He was the junior most member of the largest bench (13 judges) that heard for the maximum duration that famous case (a little later after he came to the Supreme Court in 1972) and delivered the longest judgment. The Court, as is well known, was evenly divided with Justice Khanna's opinion tilting the balance, the bottom line being the enunciation of the basic structure doctrine. Chandrachud was with the six minority judges. His judgment in that case is also a masterpiece. "Our Constitution aims at bringing about a synthesis between Fundamental Rights and Directive Principles of State Policy by giving to the former a pride of place and to the latter a place of permanence. Together, not individually, they form the core – the conscience of the Constitution. …. What is fundamental in the governance of the country cannot surely be less significant than what is fundamental in the life of an individual. That one is justiciable and the other not may show the intrinsic difficulties in making the latter enforceable through legal processes but that distinction does not bear on their relative importance." Very soon thereafter there was the Prime Minister's election case (AIR 1975 SC 2299) and Chandrachud was again the junior most member of that Bench. That was the first case in which the basic structure doctrine was applied. Chandrachud who was in the minority in Kesavananda very rightly observed: By Art 141 the law declared by the Supreme Court is binding on all Courts….The law declared by the majority 7:6 in the Fundamental Rights case must therefore be accepted by us , dutifully and without reserve, as good law. And he captured its essence in Minerva Mills (AIR 1980 SC 1789) saying: "Amend as you may even the solemn document which the founding fathers committed to your care, for you know best the needs of your generation. But the Constitution is a precious heritage; therefore you cannot destroy its identity."
He was equally at home in all branches of law and rendered about 400 reported judgments in the Supreme Court covering the entire spectrum. To mention just a few of them- T.N.Khosa (AIR 1974 SC 1) is a classic judgment on the niceties of Art 14 and the concept of equality. In Bhuvan Mohan Patnaik (AIR 1974 SC 2092) he held that convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. Satya v. Teja Singh (AIR 1975 SC 105) holding that a foreign judgment obtained by fraud is not recognized and enforced in India is considered a landmark in the field of conflict of laws. State of Karnataka v. Union of India (AIR 1978 SC 68) –holding that the Central Government could appoint a commission of enquiry against the Chief Minister and that once it was done, the State Government could not appoint a commission substantially on the same question, also sets out the fine distinction of a suit under Art 131 as contrasted with a regular suit under CPC. Prag Ice (AIR 1978 SC 1296) dwells upon the nuances of price fixation and the limits of judicial review and intervention in that area. Vishnu Agencies (AIR 1978 SC 449) held that even a compulsory statutory sale is a sale and enunciated a progressive construction of an old statute. Minerva Mills (AIR 1980 SC 1789) and Waman Rao (AIR 1981 SC 271) harmonized the fundamental rights and directive principles. "To destroy the guarantees in Part III in order purportedly to achieve the goals of Part IV is plainly to subvert the Constitution by destroying its basic structure." From being a dissenter in Kesavananda to his judgment in Indira Gandhi deciphering the basic structure and even more his emphatic and ringing elucidation of it in Minerva Mills and Waman Rao (in some ways carrying it further and improving on the Kesavananda majority), it may be said, demonstrates the courage, creativity and honesty of the judge. Gurbaksh Singh (AIR 1980 SC 1632) is considered a locus classicus on anticipatory bail. In Laksmi Charan Sen (AIR 1985 SC 1233) he held that writ court must observe a self imposed limitation and not pass orders which would result in postponing elections which are the very essence of the democratic foundation and functioning of our Constitution. Justice Chandrachud, possibly in response to the creative effusion of Justices Bhagwati and Krishna Iyer, observed in Maneka Gandhi (AIR 1978 SC 597) "Our Constitution too strides in its majesty, but may it be remembered without a due process clause." We hear this ring even in A.K.Roy (AIR 1982 SC 710). But in Rudal Sah (AIR 1983 SC 1086) which is the first decision of its kind in India, Chandrachud, CJ makes us realize that the Court's power to enforce fundamental rights is far wider than even under a 'due process' regime. It is the first case where compensation for a public tort was awarded in writ jurisdiction. Olga Tellis (AIR 1986 SC 180), the last judgment he delivered on the eve of his retirement is one of the pioneering cases which brought socio-economic rights within the sweep of Part III. Right to livelihood was held to be part of the right to life and this right of pavement dwellers was reconciled with the right to health and safety of the community at large. It is a milestone judgment in recognizing second generation human rights.
All this cannot absolve him of the timidity and ignominy in rendering the infamous and untenable ADM Jabalpur judgment (AIR 1976 SC 1207) though he later publicly acknowledged the mistake and sincerely apologized. By a strange quirk of fate, it fell to his son, Justice D. Y. Chandrachud to formally overrule that judgment over four decades later in the Privacy case (2017)10 SCC 1, though Parliament in its constituent capacity had rendered it nugatory by the Constitution 44th Amendment. This does not, however, diminish Chandrachud's greatness otherwise. One aberration cannot obliterate his very many endearing traits and accomplishments.
A judge's knowledge and scholarship should help initiate and steer a debate and discussion. It was so with Justice Chandrachud. It was both a delight and an education to appear before him. There was no tension in his court. Even the juniors felt at ease. You could always endeavour to put across a point. Light streaming from any source was welcome and encouraged. Those who appeared before him as juniors, some of whom have since retired as Supreme Court judges, testify to this. He was a great common law judge and like his illustrious forebears blazed new trails by nudging the law a little forward. The views and philosophy of a judge, particularly of the Supreme Court, must be reflected in his judgments and so it is in Justice Chandrachud's. As he observed in the Assembly Dissolution case, the content of justiciabilty varies according to how a judge's value preferences respond to the multi-dimensional problems of the day; an awareness of history is an integral part of those preferences. It was rightly remarked by Justice Bhagwati though the two of them, it is well known, had their differences: "A commitment to the legality of the laws and the procedural due process is the contribution of the Chandrachud court." As a law student I interviewed him in November, 1981 when he was Chief Justice. Among quite a few things that we talked, he made a remarkable statement whose import I can understand and appreciate better now: "The awareness that we are the last court gives us sleepless nights." This highlights the anguish that precedes a decision – the need and desirability to state the law correctly and even more to see that justice is done, of course, within the limits of the law. It is like what Learned Hand said of Cardozo: he had to wrestle with the angel all through the night; and he wrote his opinion with his very blood.
The role of the men of law in the common law tradition and in the interpretative process in constitutional adjudication is not anonymous. A study of Justice Chandrachud's work would show judicial moderation evidenced by a careful and judicious evaluation and balancing of conflicting social and economic interests and the intensity and many sidedness which have marked the making of his judgments. To recall some observations of Prof Julius Stone: He who has sincerely followed the stirrings of his predecessors and understood their questions and their replies within the limits of their situations will not only avoid their pitfalls but also recognize the more readily a problem of justice, and be alerted to the responsibilities of choice which he bears in its solution. Where personal choice cannot be avoided, he can be guided to the best alternatives and further this wider awareness may equip him to preserve a certain diffidence as to the correctness of the choices made so that the judgment stays open for review in future cases as insight and experience grow. This reformulates a superb sense of humility and unrest which has marked the approach to their tasks of the greatest lawyers- that "repose is not the destiny of man," and that the least they can seek is also the most they can win, "an echo of the infinite, a glimpse of its unfathomable limits, a hint of the universal law."(Holmes, Path of the Law). It is not given to any generation to complete the task of human improvement and redemption; but no generation is free, either, to desist from them. [Julius Stone, Human Law and Human Justice (1965) 355. Justice Chandrachud was fully aware of and alive to this vital truth. His life and work bear witness to this. He realized the truism that it is in the institutional division of powers and work and accommodation that the nation will progress on constitutional lines. This is critical for preservation of democracy and democratic rights and any disruption of the balance would be self stultifying.
Law with Chandrachud as with Holmes was both philosophy and literature. He may be ranked among the master judicial craftsmen in the English speaking world. His opinions are veritable gems- 'models of clarity, logical structuring, lucidity and elegance.' His name and fame will endure as a master of judicial prose. To cite just one example: Speaking of democracy, he says in Indira Gandhi, "Forgetting mere words which Tennyson said: 'Like Nature, half reveal and half conceal the Soul within', the substance of the matter is the rule of the majority and the manner of ascertaining the will of the majority is through the process of elections." What Chandrachud, as Government Pleader, said of Chagla's judgments (on the occasion of Chief Justice Chagla laying down office)-"when you read those judgments you feel you are at a reception to celebrate the wedding of law and literature" applies equally to Justice Chandrachud.
As Prof. Upendra Baxi said in a tribute, "In many ways Chief Justice Chandrachud represented the best traditions of the Indian Bar. In this sense he will always be recalled, with high esteem, as a lawyer's judge. Unfailingly polite, urbane to a fault, widely read, not wearing his learning on the sleeve, insistent on justice according to the law and solicitous of language and diction, Yeshwant Chandrachud cherished the dignity of the discourse as the principal reassurance for doing justice."
He was a Sanskrit scholar and also a connoisseur of Hindustani classical music. He was a voracious reader and a delightful conversationalist. He had versatile hobbies. He was also a great fan of cricket and was known to get cricket scores even in the court room, which sometimes had the effect of cooling down frayed tempers. He mentioned that it was a tradition in the Chandrachud clan that the morning tea was prepared by the head of the family. He did it always even as the Chief Justice of India.
The man was as great as the judge. Those who knew him or appeared before him, or interacted with him will always reminisce and treasure his courtliness and grace, his unfeigned modesty and true warmth and amiability. He was kind and considerate to all. While travelling when they halted in the Guest House, he would enquire and was solicitous of the comfort of all including those travelling with him and the local staff. I have myself been the recipient of his affection and goodwill having had the privilege of knowing him since my law college days more than 35 years ago. It is worthy of mention that even as Chief Justice of India, he responded to my letters promptly, even when I was a student and made touching enquiries about my success and welfare. A few months before his demise when I had mentioned that I had not received his reply to one of my letters he was quick to telephone and speak to me. That was his graciousness!
Justice Chandrachud passed away on 14 July, 2008, at the ripe age of 88, again on Hari Shayana Ekadashi. His passing removed from our midst a stellar torch bearer of a generation that is sadly and rapidly fading. He has left his distinct mark on life and law. A great and noble person, he was "learned and lovable, the acme of honour and the pink of courtesy." The esteem for him as an all time great is secure. This was a Man. When comes such another?
Views are personal only.