The occasion should have been routine – the retirement of the Chief Justice of India. Since Independence, the nation has had 50 CJIs in about 75 years, which makes it around one such event every 18 months. There is the usual excitement about the incoming new Chief for a few days and then the routine farewell good-byes to the outgoing Chief, recounting his initiatives and efforts at ‘judicial reforms’. And soon it is history. The name disappears from public discourse. Over and out.

This time, it has been rather different. The retirement last month of the respected Chief Justice D Y Chandrachud continues to excite widespread comment and debate about the ‘legacy’ that he has left behind. There is, by and large, dis-appointment and worse about his innings of two years where he was widely expected to set right some glaring shortfalls between  promise and performance, between anticipated and actual achievement. The stakeholder – society at large, was fondly hopeful that he would set right the growing perception that somehow the delicate ‘balance of power’ between the ruling Executive and the Judiciary was tilting in favour of the former.

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It is the experience of universal social dynamics that where expectations are high, and these are belied, the disap-pointment is deep. After all, the Chief had the best credentials for a top scorer, a ‘man of the match’ material. He was the youngest judge appointed to any High Court in India. He had done his law at Harvard. His respected late father was likewise the Chief Justice of India who served the longest in the Apex Court, a man of impeccable integrity. It could be confidently said that legal acumen was embedded in his genes. And he was widely cheered even before he started his innings.

To be fair to him, he executed some master strokes. In the celebrated case of Arnab Goswami vs Maharashtra, he raised the bar to lofty heights in Criminal Jurisprudence. In the case of arrest of a senior Editor, he batted firmly for ‘bail, never jail’ even if there were to be the slightest infirmity in the FIR or prima facie police enquiry. An injunction was decisively issued to all the courts in India, which will be written in stone that should they dither or demur “even one day’s delay (in all such cases) would be a day too many”. It was his finest hour. The nation cheered him loudly.

But then there was the faltering bats-man who went a little out of his crease, to use the phrase of late Fali Nariman, eminent jurist, regarding Lord Denning, that saw the respected Justice Chan-drachud given run out. The sensitive case of the violation of the Places of Worship Act, 1991, specially enacted by Parliament in its wisdom to stem the tide of litigation where the members of the majority community were targeting the existing places of worship of the minorities, to usurp their possessions and “reclaim” the supposed ancient places of worship of the majority com-munity that had been desecrated by some “foreign invaders”, tracelessly buried deep underground.

Such mischief was spreading like the plague particularly in northern India. Hence, in 1991, Parliament put a legal stop to such sinister resort to the courts of law, by freezing the status of ‘places of worship’ as on the eve of Independence. Indeed, it was a pioneering piece of legislation to douse the fires of communal strife spreading unchecked because of a plethora of motivated lit-igation in various courts of law. The said Act is brief, plain and unambiguous, leaving little scope for varying inter-pretations. The Preamble itself is clear, that it bars all ‘conversion of places’ from one denomination to another. It is starkly secular, in that it covers all places of worship, irrespective of any particular denomination.

The matter reaches the Court of the Chief Justice, as the decision of a lower court granting permission to members of the majority community to a “non-invasive” survey being done underground was illegal, as being barred under the Act. The supposedly “desecrated” site lay under a present shrine, in the imag-ination of the petitioner. The respected Justice Chandrachud upheld the lower court order on the reasoning that although the Act bars conversion of places of worship, it does not bar a “non-invasive” survey of a structure which may lie buried underneath. As a respected commentator put it aptly, the Chief thereby opened a Pandora’s Box. The probable communal strife is bound to turn the provisions of the Act upside down.

The aforesaid interpretation of the Act as expounded by the respected Justice Chandrachud is against all rules of interpretation. It is universally estab-lished that where more than one inter-pretation of a statute is possible, the court must adopt that interpretation which gives effect to the purpose of law, “to suppress the mischief and advance the remedy”. The afore-men-tioned interpretation is bound to ignite communal strife. The interpretation given by him can only be justified with the aid of legal sophistry. Indeed, to no one’s surprise it has already lit a communal fire.

One does not have to be a trained lawyer to detect the resort to legal sophistry. Assume, for the sake of argu-ment that a law, validly enacted says that a wall shall not be broken down. A culprit is caught dismantling it, brick by brick. Can a court of law interpret it as not a case of breaking down but just dismantling it, holding that it is not barred by law? If the law courts were to adopt the reasoning advanced by the learned former Chief, it would tantamount to trashing the express will of Parliament. In the bargain, communal harmony and social justice which is the basic objective of the rule of law would be thrown out of the window.

There was another initiative that was keenly awaited from the respected Chief, to put a stop to the persistent tendency on the part of the ruling Exec-utive to offer post-retirement sinecures to retiring Chiefs of the Apex Court. It had been happening for quite a while. The immediate predecessor of the Chief was nominated to the Rajya Sabha, thereby seriously eroding the inde-pendence of the Judiciary. It had been widely criticised in the national media. The move was seen as a clear violation of the ‘basic structure’ of the Constitution, whereby the Judiciary is barred from accepting positions under the Executive. After all, the Apex Court is the ultimate custodian of the ‘basic structure’.

This was not the first case. Earlier, another retiring Chief was appointed as a Governor. Both the Chiefs were publicly questioned.  When the first one was publicly questioned about the violation of the ‘basic structure’, the Chief’s reply was pathetic: “I have accepted the Government’s offer as I want to serve the people of the State” (where he was being posted). Of all Constitutional functionaries, he should have been the first one to know that under the Constitution, the Governor has no role in the day-to-day functioning of the Government. It is largely ceremonial.

The reply of the second Chief was equally pathetic, if not self-serving.  He is reported to have replied that he had been asked by the then President to clasp the outstretched hand of the Executive. Assuming it were so, the reply of the Chief should have been that were he to do so, he would be violating the oath of his office ‘to preserve, protect and uphold the Constitution.’ The two embarrassing precedents were there before the respected Chief Chandrachud, to undo the damage to the ‘basic structure’ inflicted by the Executive. He did no such thing. Warren Hastings, the founder of the rule of law in British India had warned: “Inaction, more than action leads to the death of public pur-pose”.

Of the three co-equal organs of the State, inaction by the Judiciary can visit the maximum damage on society. If the Executive is deliberately inactive, it can be hauled up for “dereliction of duty”. If the Legislature is inactive, it will lose the voter’s confidence as also his vote. But if the Judiciary is inactive, there is no hope. As the veteran civil servant B K Nehru put it, whereas the Executive is accountable to both the Parliament and the Judiciary, the Par-liament is accountable to the Judiciary, the Judiciary is accountable to no one. Hence, great hope was placed on Justice Chandrachud. But the initial fond hope in the end turned out to be nothing more than a pious hope.

The crowning inglorious stroke of his innings was when the Chief Justice of India was publicly seen praying with the Head of the Executive in his official residence. It has been widely commented in the national media, as an entirely avoidable act. It is an established fact the Government is the largest litigant in the courts of law. Let alone the act itself, the timing is suspect. It happened on the eve of his impending retirement. The Chief should have known that there were already two embarrassing precedents over which public opinion in the country was concerned.

As should have been anticipated, the Chief was questioned publicly in the people’s court, so to say, organized by a leading national daily. He downplayed the whole episode by publicly declaring that “deals (quid pro quo) with the Executive are not cut in such a manner.” Secondly, social interaction with members of the Executive is customary and the public should not read too much into it. “Have faith in our judges”, he had extolled in his favour, before a select audience. Unfortunately, the ‘defense’ advanced by him lacks credibility on all counts. The star batsman appears to have lapsed into a case of ‘hit wicket’, ‘judging’ by his own explanation.

Undeniably, there is social mixing between Executive and Judiciary but it is limited to customary occasions such as marriages, etc. Moreover, it is generally in the public domain and in open func-tions, in sizeable gatherings, not in the ante-chambers of official bungalows. Secondly, ‘sweet deals’ are still being “cut”. During the tenure of Justice Chan-drachud, another retiring judge of the Apex Court has been appointed Governor, while the respected Chief was busy looking the other way. He failed to take any suo motu notice, conveniently over-looking that the Apex Court is the only institution in the country that can rectify the repeated violations of the ‘basic structure’ of the Constitution by the Executive.

There is another facet of the Judici-ary-Executive bonhomie that was bypassed. ‘Independence of the judiciary’ is arguably the most basic of the ‘Basic Structure’ doctrine. It enjoys the status of a cliché. It is sometimes overlooked that the full form of the cliché is ‘Inde-pendence from the Executive’. In a public Statement of “Values of Judicial Life” as adopted by a Full Court of Supreme Court in 1997, there was a moral injunction that every member of the Higher Judiciary must at all times practice “a degree of aloofness consistent with dignity of office … away from public gaze … no act even in personal capacity which erodes his credibility”. An open bonhomie is to trash proclaimed Judicial Values.

The Chief did not have to look far. He had healthy precedents before him from his own Court regarding some fine traditions of judicial rectitude and Constitutional propriety inherited from British times. As pointed out by the eminent jurist Fali Nariman, soon after Independence, Pt. Nehru wanted to appoint a junior Supreme Court judge, B K Mukherjea as the Chief Justice of India, superseding Justice M C Mahajan who was six months his senior. Justice Mukherjea refused to join and even threatened to resign. Pt Nehru immediately dropped his proposal.

In sum, Justice Chandrachud has left behind a mixed legacy. More, much more was expected from him. Less was delivered by him, much less.

(The writer is a retired IAS officer and a Member, International Academy of Law.)